Re DP sub nom Public Guardian v JM [2014]

D suffered from dementia and had no immediate family.  Shortly before moving into a care home she executed a Lasting Power of Attorney (“LPA”) for property and financial affairs naming JM, her former gardener whom she had known for 5 years, as her sole attorney.  The LPA was registered in February 2012.

In 2013 the Office of the Public Guardian (“OPG”) applied to the Court of Protection for revocation and cancellation of the LPA and requesting that a deputy be appointed to manage DP’s property and affairs.  The application was made after concerns had been raised about JM’s conduct.  During a hospital stay JM had turned up and demanded that D be released into his care which resulted in a safeguarding alert; JM had sold D’s house and placed the sale proceeds in a bank account in his own name; he had paid himself £38,000 from D’s bank account and had been unable to account for numerous cash withdrawals from the account; he had attempted to transfer D’s investment bond; and he had leased a vehicle using funds from D’s account.

In order to be able to revoke a Lasting Power of Attorney on the basis of the attorney’s past performance, the court needed to be satisfied that: (1) JM had contravened his authority; or (2) JM had not acted in D’s best interests; and (3) the donor lacked the capacity to revoke the LPA.

The court was satisfied with the evidence from the Court of Protection’s General Visitor on D’s capacity.  Her assessment followed the set format and it concluded that D did not have mental capacity in relation to a decision about revoking or suspending the LPA.

In relation to JM’s conduct the court stated that it was unusual for the OPG to receive referrals about an attorney’s conduct from two completely unrelated sources.  Concerns had been raised by the NHS Trust more than a year before Aviva alerted the OPG to the suspicious behaviour of JM seeking to transfer the investment bond.  The court found that by making a gift to himself, JM had contravened the provisions of section 12 of the Mental Capacity Act 2005.  In order to make a gift of this magnitude he should have applied to the Court of Protection for formal authorisation.  The court held that JM had also contravened his authority by awarding himself a salary.  He had no authority under the LPA to charge for his services and if he wished to receive a salary he should have applied to the Court of Protection for directions.  In addition to this JM had breached his fiduciary duties as an attorney by failing to keep proper accounts and financial records.

The court was satisfied that JM had acted in a way that was not in D’s best interests and had contravened his authority and revoked the Lasting Power of Attorney.  The court directed that a deputy was to be appointed to manage D’s affairs

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