By Clare Fuller, 7th October 2021
As an advocate for Advance Care Planning and a Lasting Power of Attorney (LPA) Consultant, I promote the normalising of planning ahead conversations (see Speak for Me LPA).
As a nurse specialising in Palliative and End of Life Care, I have seen first-hand what happens when LPAs are not in place. I have witnessed families in distress when a loved one has deteriorated and, despite having had conversations about end of life wishes, they had not formalised decision making through a Lasting Power of Attorney; families have felt their voice was not heard in decision making.
A very public example of the challenges faced without an LPA in place is the situation Kate Garraway found herself in when her husband, Derek, developed COVID-19 and lost capacity to make decisions for himself. Derek did not have a Lasting Power of Attorney in place for the management of Property and Finance, meaning Kate was unable to manage access funds for care or refinance their mortgage, or to manage the family finances, a situation creating enormous additional strain in an already difficult situation.
From a highly personal perspective I can reflect on the care of my Uncle as he lost capacity and the benefits of having both a Health and Welfare and a Property and Finance LPA in place. In my Uncle’s case we were able to make decisions for him, knowing well his wishes, values and beliefs; this meant he was able to spend precious time in a home where he felt safe and happy.
In the Court of Protection recently, I observed what can happen when a person who has since lost capacity has appointed an LPA (for both Finance and Property and for Health and Welfare) but it’s not working well.
The case (COP 13339015) was heard over three days (27-29th September 2021) before District Judge McIlwaine at Lincoln Family Court. It was a ‘hybrid’ hearing, i.e. one of the nine parties to the case was present in person, and the other eight attended remotely (in some cases from overseas). I was able to observe the final two days of the hearing (via video-link), and received helpful notes from Claire Martin who observed the first day of the hearing. There had been an earlier ‘directions’ hearing, blogged about by Claire Martin.
This was the third time I’d observed a hearing in the Court of Protection, and I felt more confident in knowing my role as an observer and how best to prepare. I’ve previously watched a hearing focussing on LPAs across borders and in July 2020 bore witness to a young woman’s application for the court to rule on her capacity to make her own decisions about a feeding tube when she was dying from Anorexia Nervosa.
Once I received confirmation of attendance I requested a Transparency Order and a Position Statement (from the only represented party), which enabled me to understand the key issues before the court.
I’ll refer to the person at the centre of the case as Mrs P. She has advanced dementia and lives at home with her daughter (and LPA), BR. The parties were:
- the applicant (BR) – Mrs P’s daughter and the person she had appointed as her Attorney both for Property and Finance and for Health and Welfare.
- BR’s husband.
- BR’s five brothers and sisters.
- Office of the Public Guardian, represented by Alex Cisneros (the 8th respondent).
- BR’s son was also in court as a McKenzie Friend.
The key issues were:
- The amount of remuneration for gratuitous care provided by the applicant BR to Mrs P – both the care already given from 2014 until now, and in the future. “Gratuitous care” refers to the unpaid support BR has given to care for her Mother, Mrs P, this includes helping her with all activities of day to day living.
- Whether to authorise £21,649 from Mrs P’s account to extend the garage at BR’s house to create an additional bedroom for a carer to stay overnight, and to enlarge the existing bathroom area for Mrs P.
- Whether to retrospectively approve the £25,490 that BR used to purchase a car using Mrs P’s finances.
- Whether to revoke BR’s Property and Finance Lasting Power of Attorney and appoint a panel deputy instead.
- Whether to make some form of order or declaration regarding the contact that Mrs P has with her family.
The case was highly complex and unusually involved eight litigants in person. Although there was a lot of argument about money, what seemed to lie at the heart of the case was the issue of contact.
Basically, what had happened was that Mrs P was living with BR and her husband. BR was caring for her (with some paid assistance), and making all the decisions about Mrs P’s finances and her health and welfare, as she seemed entitled to do by virtue of her role as Lasting Power of Attorney. The other members of the family (other than her husband, who supported her throughout) felt excluded from involvement in Mrs P’s life. BR was preventing them from visiting her at her home, and there had been difficulties with arranging to meet her in other locations, and in setting up communication via video-links. There had been a major family falling out between BR and her siblings. They saw her as “controlling”, “aggressive” and “paranoid” and said she had imposed unnecessary restrictions on their right to see their mother. They also said she’d accused them of visiting their mother only because they wanted to “spy” on her – and BR also made this claim at one point in court. In agreeing that the family had the right to see Mrs P, BR explained that they could see Mrs P, but not her: “I can’t allow you anymore to see me. I can’t repair any more. I can’t mend bridges, and I don’t want to”. it was heart wrenching to see a family so divided.
DJ McIlwaine demonstrated great skill in managing the case. He ensured that everyone had opportunity to express their views and described part of his role as being to “take some of the energy out of the family dynamic”. The judge conveyed a great deal of sympathy for all parties but also maintained a clear focus on getting the court process back on track when people raised issues that were not germane to the key business of the court. “I don’t want to be unsympathetic,” he said (several times), “but I have to get everyone’s evidence before the court.” He pointed out that if he was not able to do that within the three days assigned to the case, the next slot available was not until February 2022.
By the third day the judge was plainly moved by what he described as “a tragic mismatch of communication”. He said, “I appreciate there’s a family dynamic, and it’s tragic to see it play out”. He wondered aloud: “If she (Mrs P) could sit at the back of this courtroom, with full mental capacity, what she would have made of the last 3 days”.
In observing, I felt DJ McIlwaine demonstrated patience and compassion by continually checking the understanding of all involved, offering breaks when emotions ran high and taking time to explain what can feel a daunting court process. He offered support to the applicant and respondents throughout.
This divided family was also supported by the efforts Alex Cisneros made to offer suggestions to resolve the conflict with visiting arrangements, as well as his offer of support with gratuitous care calculations. I understand this was above and beyond the usual role of the OPG. His input was very much appreciated by DJ McIlwaine who said, “that is a remarkable offer, without the OPG it would be even more complicated”.
The judge said he would hand down a judgment by the end of October 2021, and I’ll link to the judgment when it’s available. But the Lasting Power of Attorney for Property and Finance is no longer part of this judgment – and that’s the focus of this blog post.
Lasting Power of Attorney, Property and Finance
Mrs P had appointed BR as her Attorney for both Property and Finance and for Health and Welfare.
In an earlier blog, I clarify the two different LPAs and their function.
A Lasting Power of Attorney (LPA) is a legal document that lets you appoint one or more people to make decisions on your behalf. This gives you more control over what happens to you if you have an accident or an illness and cannot make your own decisions. The formal requirements, scope and applicability of LPAs are set out in Sections 9-14 of the Mental Capacity Act 2005.
There are two different kinds of LPA. A Health and Welfare LPA would be used if you lost capacity to make decisions about issues relating to health (e.g. whether you should have surgery or other medical treatments). An important element of the Health and Welfare LPA is that it offers the opportunity to give the person or people appointed, (the attorney(s)), authority to make life-sustaining treatment decisions.
A Property and Finance LPA is used for to appoint someone to make decisions about your money – and can take effect, with your consent, as soon as it is registered.
Since making these LPAs, Mrs P has lost capacity to make her own decisions about her property and finance, and about her health and welfare (due to Alzheimer’s dementia). Nobody disputed this, and nobody disputed the validity of the LPAs.
Prior to living with BR and her husband, Mrs P lived in Ireland with her husband who was described as “brain power” to complement Mrs P’s “muscle power” in the relationship. When he died, Mrs P was unable to care for herself. (I suspect this picture of co-dependence will be familiar to many families.) BR spoke of discussions prior to her father’s death in which he “asked if we could look after her (Mrs P)….he did not want her to live in a care home” and she moved to live with her daughter in 2014.
In order to pay for the costs of care, BR has, in her capacity as Property and Finance attorney, drawn from Mrs P’s finances. The costs cited include:
- care delivered by BR;
- the purchase of a car to transport Mrs P;
- the cost of care payments to agencies and individuals to care for P; and
- the cost of a proposed extension.
A picture was drawn of the care needs of Mrs P – which demonstrated twenty-four-hour care was required, including an average of two assists per night. Mrs P was described as mobile, but with poor short-term memory. I was interested to note that an up-to-date Care Needs Assessment was not available as part of the evidence and the most recent face to face assessment was in 2019. My impression was that a more recent assessment would have been of value in understanding current care needs, however the consensus was little had changed since the previous assessment.
The question of revocation, one of the key issues of this case, came following concerns by the Office of the Public Guardian. The legal test for decision making about revocation of an attorney and subsequent appointment of a professional deputy is the best interests test (s. 22(3)(b) Mental Capacity Act 2005).
In his summary, Counsel for the Office of the Public Guardian provided the following as reasons to revoke BR as an attorney:
- management of investments – BR had previously been advised to divide Mrs P’s finances to protect them but had not done so;
- the security bond associated with appointment of a professional deputy would protect Mrs P’s finances;
- the provision of a mechanism for the Court to review and scrutinise the financial management of Mrs P’s assets (also associated with the appointment of a professional deputy);
- a professional deputy would provide an independent and mediatory role within the family;
- There are ongoing financial decisions which need to be made for Mrs P regarding costs of care – for which an independent professional financial deputy would be able to provide expert advice.
Attention was drawn to the complex family dynamic and deep mistrust between BR and her siblings. BR no longer had contact with any of her siblings and throughout both days we saw evidence of the pain this caused all parties; in a particularly emotional point BR stated she felt there was “more hate in the statements (from her siblings) than I know existed”. Counsel used the family dynamics as further evidence that best interests decision making was not in place for P, and quoted Senior Judge Lush in Re BM; JV v AG – noting that where there is ongoing family friction, “the court wouldn’t contemplate appointing a particular family member or friend as deputy”.
Although the position of the Office of the Public Guardian was that BR should be removed as LPA for Property and Finance, DJ McIlwaine reiterated several times that there was no question of dishonesty on her part (especially when, at one point, BR argued that the OPG’s calculation of care costs that should be paid to her was too high). I believe this was highly significant.
One alternative to the LPA being revoked by the court was for BR to rescind it. (Another of course was that the court could decide – contrary to the position advanced by the OPG, that she should remain as LPA.)
While the outcome reached either by forced revocation or by voluntary rescinding of power of attorney is the same (i.e. BR would no longer be Mrs P’s attorney), there is an emotive component behind the decision. BR presented as being overwhelmed by the care of her mother in addition to managing the finances. Earlier in the proceedings DJ McIlwaine acknowledged this, saying “That’s why I floated whether or not the time has come for a professional deputy who could remove some of the burden in your life – for your wellbeing”.
The question of removing responsibility for Health and Welfare decision making was not before the court, although several family members volunteered the information that they thought BR should also be removed as attorney for Health and Welfare decision making.
Following counsel’s summary, DJ McIlwaine allowed BR time to consider, carefully checking to ensure she felt under no pressure, and invited her thoughts about whether she might want to voluntarily rescind the LPA. Her sister, the replacement attorney for Property and Finance, to whom the LPA would fall if BR were to rescind, had already also agreed to rescind, meaning that there would then be no obstacle to appointing a panel deputy. Shortly after 5pm on the third day of the hearing, BR voluntarily rescinded her role as Property and Finance attorney, and this matter was removed from the judgment.
Considerations when making a Lasting Power of Attorney
In making a Lasting Power of Attorney, it’s important for families to discuss the details of how they hope and expect it will work if and when it becomes effective.
There is scope in making an LPA for the donor (the person making the LPA) to state specific wishes, but balanced against this is the need to ensure that any written preferences and instructions for attorneys are clear and non-ambiguous – any doubt in wording can result in the OPG rejecting the application (and subsequent reapplication costs).
In many cases the sections for preferences and instructions are left blank. This need not be a problem if the family has is agreed and has absolute clarity and understanding of the donor’s wishes. But where there is any suspicion that the family may take different views, or that the person (or people) appointed as attorney(s) might not act in accordance with the person’s best wishes and/or might be challenged (as here), it is important to consider completing them.
There are two sections of relevance in the Property and Finance LPA form (and parallel section in the Health and Welfare LPA form) : “Preferences” and “Instructions”.
In drafting preferences, the donor has an opportunity to articulate what they would like their attorneys to consider when making decisions; the attorney is not bound to follow them but should consider in decision making. Wording like “I would like…” and “I would prefer…” should be used in this section. Examples of preferences in the OPG Guide to making an LPA include:
Instructions explicitly tell attorneys how to act on the donor’s behalf and the OPG advises that legal advice may be appropriate when drafting instructions in a Property and Finance LPA. Examples of instructions in the OPG Guide to making an LPA include:
The OPG Guide to making an LPA identifies “The only circumstances in which you must write an instruction is in a financial LPA if:
- you have investments managed by a bank and want that to continue
- you want to allow your attorneys to let a bank manage your investments”
When drafting instructions or preferences it can be valuable to include why a particular statement was written and the reasons behind it – this can be of potential use in any later challenge.
Reflecting on Mrs P’s case and OPG advice, what might have helped and how could it be documented? The situation could have been clearer if Mrs P had written any of the following:
“I would prefer my money to be used to enhance my comfort even if it’s not strictly “necessary” OR “I don’t want a lot of money spent on building extensions to house me or expensive cars – I’d rather it went to my children and grandchildren as part of my estate”.
“If I am being cared for by my family, please use my funds to pay for additional help to ensure family members have time off and don’t have to spend all their time looking after me.”
“If there comes a time when I need a family member to drive me around, please use my money to buy a car for me that you can also use for yourself and enjoy driving.”
“I am a naturally risk-averse person and would not want you to take risks with my money. Please divide my funds and investments to protect them and please consult a professional financial adviser.”
Although the question of revocation of the Health and Welfare LPA was not before the Court, reflecting on the case makes me wonder what wording when drafting the LPAs could have made a difference.
There are lessons to be learned on the value of documenting preferences as they make the donor’s wishes explicit, provide guidance for attorneys, and can be referred to should there ever be dispute. With the value of hindsight, preferences and instructions in the Health and Welfare LPA that might have helped in this case could have included:
- “I prefer to live within 10 miles of XXX“
- “My attorneys must ensure I am given only pescatarian food” (we heard in court that Mrs P followed a pescatarian diet)
The Attorneys appeared unprepared for their role in part because P had not provided instruction and I suspect in part because situations arose that could not have been foreseen by Mrs. P.
When working with families and drafting LPAs for clients, I encourage open and honest conversations. LPA documents lack meaning (and legal validity) if there is no understanding of the wishes, values and beliefs of the donor at the heart of all decision making. In many ways, it is these conversations that matter so much rather than documents (however without the LPA documents there is no legal right for next of kin to have decision making responsibility). There are resources to promote planning ahead, and campaigns such as Dying Matters Awareness Week seek to promote more open conversations. What Matters Conversations and the Marie Curie Talk About Cards offer prompts to consider and discuss.
Attending a hearing in the Court of Protection is an exceptionally valuable learning opportunity. Seeing application of the MCA and discussion of the nuances associated with the Act bring to life principles learned and highlight what must be considered when making best interests decisions.
This hearing also introduced me to the role of a McKenzie Friend, something I had not heard of before, and I now understand the role of a McKenzie Fiend is to provide moral support and help for litigants.
During this long hearing, DJ McIlwaine stated to the applicant, “I have never met anyone who is perfect at everything”. Neither have I.
My wish for Mrs P and her family is that by removing the burden of financial investment management from BR, they can focus on delivering care and building bridges in the future.
My wish for us all is that we have conversations that matter.
Clare Fuller RGN MSc is a registered nurse with a career dedicated to Palliative and End of Life Care. She is an advocate for proactive Advance Care Planning and delivers bespoke EoLC education. She is also a Lasting Power of Attorney Consultant and director of Speak for Me LPA. She tweets @ClareFuller17