Sometimes a family law report will strike a personal chord, reminding one of one’s own family, and thereby bringing home the reality of the circumstances surrounding the case. So it was when I read the report of the Court of Protection case Re SF yesterday.
Re SF concerned Sheila, a woman of my late mother’s generation who, just like my mother, was unable to manage her affairs and was looked after in a nursing home. There, thankfully, the similarity with my family ended. In the judgment Senior Judge Lush was considering an application by the Public Guardian for the court to revoke an Enduring Power of Attorney (EPA) and to direct him to cancel its registration.
Senior Judge Lush sets out the background to the case so concisely that it would be pointless for me to try to summarise it:
“Sheila was born on 8 April 1928. She and her husband, Ronald, retired from Lancashire to Powys in the late 1980’s. Ronald died in 1998 and Sheila’s health progressively deteriorated from then onwards.
“In 2004 she was compulsorily admitted to hospital in Llandrindod Wells under section 2 of the Mental Health Act 1983 and, when her period of detention under that section expired after 28 days, she remained in the hospital for several months as an informal patient. She was never detained under section 3 of the Act.
“For many years she resided in a care home in Llandrindod Wells, but since 20 February 2013, because of her increased care needs, she has lived in a nursing home across the English border in Herefordshire.
“She has one son, Martin, who was born on 31 March 1953 and lives in Gerrards Cross, Buckinghamshire. He used to work as a project manager for Ernst & Young, became an independent consultant in 1992, and has now retired.
“On 23 October 2004 Sheila signed an EPA, in which she appointed Martin to be her sole attorney, with general authority to act on her behalf in relation to all her property and affairs.
“On 9 July 2009 Martin applied to the Office of the Public Guardian (‘OPG’) to register the EPA, having given notice of his intention to do so to Sheila and her four brothers. There were no objections and the EPA was registered on 7 August 2009.”
The application by the Public Guardian was made 31 March 2015. As far as the Public Guardian was concerned, there were three main issues in the case:
(a) Martin hadn’t paid his mother’s care fees;
(b) He wasn’t providing a personal allowance to pay for her toiletries, hairdressing and chiropody; and
(c) His charges for acting as her attorney were excessive.
Dealing with these in turn:
The unpaid care fees totalled £29,000. There was an ongoing dispute between Martin and Powys County Council and the Powys Local Health Board regarding the fees, and in 2013 the Health Board had reimbursed the sum of £82,007.63 in respect of fees up to 2009. Martin was also seeking reimbursement of fees up to 2013, and this claim remains pending. Martin’s argument was that if the care fees were paid then the Health Board would seek to avoid refunding monies owed. Senior Judge Lush found that there was no evidence to support this suggestion. The Health Board had acted in good faith and reimbursed any fees that were overpaid in the past, whereas Martin, on the other hand, had persistently acted in bad faith.
As for Sheila’s personal allowance, Martin had paid £213 in June 2014, but had paid nothing since. The outstanding balance on 30 June 2015 was £496.50. Senior Judge Lush had this to say on this issue:
“Martin hasn’t paid his mother a personal allowance since June 2014 because toiletries were free in her previous residential care home and he resents having to pay for them now in the nursing home in which she has been living since February 2013. He even begrudges her having her hair tinted.”
Finally, and most damningly, there was the issue of Martin’s charges for acting as Sheila’s attorney. When the application was issued the Public Guardian stated that Martin had claimed a total of £49,143.19 since the EPA was registered on 7 August 2009. However, Martin subsequently divulged that he had received a cheque from the solicitors dealing with the care fee reimbursement claim for £68,146.26, which he had paid this into his own bank account in part payment for the costs he had incurred. Accordingly, the total amount that Martin had taken for his expenses was £117,289.45. Unsurprisingly, the Public Guardian considered that this was an excessive amount. Martin did not agree, saying that he had charged his mother a daily rate of £400 for visiting her and for the work he put into the claims against the Health Board – this was his usual daily charging rate when he was a self-employed independent consultant prior to his retirement.
His argument, however, carried little weight with Senior Judge Lush, who scathingly commented:
“I believe that charging one’s elderly mother a daily rate of £400 for visiting and acting as her attorney is repugnant.”
In addition to the above, Martin suggested that the application was a waste of time because he was his mother’s sole beneficiary and therefore her estate was effectively already his. Needless to say, this suggestion cut no ice with Senior Judge Lush, who sated that the appointment of a panel deputy to make decisions on behalf of Sheila in relation to her property and financial affairs would, for the first time in eleven years, place Sheila at the centre of the decision-making process, rather than view the preservation and enhancement of Martin’s inheritance as the paramount consideration.
In short, Senior Judge Lush concluded that:
“One would be hard pressed to find a more callous and calculating attorney, who has so flagrantly abused his position of trust.”
Accordingly, he was satisfied that Martin was unsuitable to be Sheila’s attorney, and he therefore revoked the EPA and directed the Public Guardian to cancel its registration. He also directed an officer of the court to invite a panel deputy to apply to be appointed as Sheila’s deputy for property and affairs.
The full report of Re SF can be read here.
