Pettifogging? Judge invites Office of the Public Guardian to reconsider application to revoke LPA

By Claire Martin, 2 June 2023

This was an application from the Office of the Public Guardian (OPG) for a declaration that P’s (purported) appointment of his wife and son as LPA and replacement LPA, respectively, for Property and Finance, was either not valid (because P lacked capacity to make the LPA) or should be revoked in any case because the attorneys have not acted in P’s best interests.  This application was resisted by the judge who invited the OPG to consider whether it is in P’s best interests to continue with the application.

Background 

I observed a video hearing on 11^th May 2023 (COP 13942733). District Judge Eldergill explained to counsel for the Office for the Public Guardian), Tom Francis and to the two other parties (P’s wife and son) who were representing themselves, that ‘there is an observer present’. DJ Eldergill mentioned my name and invited Tom Francis to give an ‘outline of the case, so the observer knows what we are dealing with’. I really appreciated this short introduction. Quite often observers have to deduce what a case is about, without any opening summary. I did wonder whether this had also been helpful to the parties, as they looked (to me) to be feeling quite uncomfortable joining the hearing, for reasons which became clear as the hearing progressed. 

Tom Francis explained: “This application is brought by the OPG for declaratory and mandatory relief regarding an LPA executed on 4th Aug 2017, by the protected party. Some concerns were raised to the OPG … [which] seeks to clarify [whether] he would have lacked capacity at the relevant time. If the court makes that declaration then it stands that … the LPA is not valid. In the alternative, then the OPG is asking the court to revoke the LPA in any event, because the attorneys have not acted in [P’s] best interests, and they suggest a panel deputy, Ms X. We don’t have COP 5 or witness statements [from the first or second respondent]. It is hoped we can learn their position.^[1]”

I didn’t know (and I don’t think most observers would know) about declaratory or mandatory relief, or what a COP5 was, so I have looked them up. 

‘Declaratory and mandatory relief’ aren’t easy terms to find a layman’s definition for, and searches threw up tautological language in their efforts to define the terms. A legal expert explained to me that “‘declaratory and mandatory relief’ are terms for what the OPG is asking the Court to do in the case (‘relief’ being shorthand for what the Court Orders/Declares). [So, in this case], declaratory relief that at the relevant time P would have lacked the capacity to execute the LPA; mandatory relief (i.e. something obligatory, or of force) that the OPG cancel registration of that LPA.” 

A COP5 is a form that people fill in to confirm that they wish to be part of proceedings in court. It is also known as ‘acknowledgement of service’. When I joined the hearing, Tom Francis was on screen with the two respondents, who were together at home. 

P (the protected party) is a man with Lewy Body dementia, and the two respondents are his wife and his son, the people he nominated as LPA and replacement LPA respectively.  P was not a party, and was not represented: I am not sure why. 

P has lived in a care home since February 2017. The OPG argues that when he made his LPA for Property & Financial Affairs, in August 2017, appointing his wife and son as his attorneys, P lacked capacity to do so. The OPG also argues that, even if the court finds that P retained capacity at the relevant time, it should be found that P’s wife is not carrying out the attorney’s duty in P’s best interests and that she should be displaced. 

The Hearing 

When DJ Eldergill joined the hearing, I was struck by his welcoming manner to all. This must have been a very difficult experience for P’s wife and son, and as the account of events unfolded, this view strengthened in my mind. 

Tom Francis was very facilitative and polite to P’s wife and son, but the contentions his client (OPG) was making were pretty devastating. It was said that ‘concerns were raised’ (though not by whom –  this might have been discussed at a previous hearing) about whether P had had capacity to make his LPA, and moreover that his wife, had, in effect, pocketed a lot of P’s money for her own benefit. 

What transpired was that P had made an LPA three months earlier than the contested August 2017 document, which had been rejected by the OPG due to the fact that P had not printed his full name on the application. It wasn’t clear whether a copy of this May 2017 LPA was in existence and DJ Eldergill pointed out that the earlier LPA was made when P had been certified by ‘a much more experienced solicitor and a registered MH nurse’ (rather than the Special Visitor on whose retrospective assessment the OPG was resting their case):

Judge: So in other words, had the LPA of May 2017 not been rejected there would be a valid LPA in existence even from the OPG view?

Tom Francis: I can see what you are getting at, but the OPG doesn’t have a valid LPA. It was rejected so the only one is from August 2017.

Judge: I can’t help feeling that’s an error on the OPG’s part. … The first question [quoting Schedule 1, para 3 of the MCA 2005] is: does the failure to print the full name have a material effect [on the validity of the LPA]? To me rejecting an LPA because someone hasn’t printed their name is verging on the absurd. Let’s say that’s right, that it is a material defect, then paragraph 2 [Schedule 1 MCA 2005] ‘The court may declare that an instrument which is not in the prescribed form is to be treated as if it were, if it is satisfied that the persons executing the instrument intended it to create a lasting power of attorney.’  This stems from the Law Commission report in February 1995. The OPG was rejecting EPAs, in those days, on very minor grounds, ‘pettifogging grounds’. [The report] recommended that in order to get rid of pettifogging – then the intention [was to be allowed.]  So, if the May LPA was in existence, then the court should have been invited to declare that it was valid. Can I ask [wife] and [son] – the May LPA when it was signed and rejected by OPG, was it sent back to you?   [Judge’s emphases]

P’s wife confirmed that the May 2017 LPA had not been returned. 

There was disagreement from the OPG about whether, even then (in May 2017), P would have retained capacity to make the LPA, and the OPG had instructed a Special Visitor (a consultant psychiatrist) who had written a report, retrospectively assessing P’s mental capacity and had concluded that “On the balance of probabilities from August 2016 onwards P would have lacked the capacity to understand or retain information in relation to his PFA [property and financial affairs]’ and further ‘In my opinion, based on the evidence I have seen, I think it is unlikely that [P] would have had capacity to create his LPAs on 4 August 2017” [Position Statement of OPG, kindly shared by Tom Francis]. 

I observed P’s wife and son patiently watching the conversation between the judge and counsel. They both looked quite bewildered by proceedings, and they had my empathy. 

It was then raised that the concerns about how the LPA duty was being carried out were due to the fact that P’s wife had sold the marital home and bought a smaller residence (in both her and her husband’s names) and had used some of the surplus money from the sale to make renovations to the new home. 

I was wondering why that was deemed a problem. The second part of the OPG’s application was that this was not in P’s best interests, and that the attorneys (P’s wife and son) were in breach of their fiduciary duty, and should be replaced by a court-appointed deputy for financial affairs. DJ Eldergill spent a few minutes asking P’s wife when she married P, where they married and the vows that they took. This was a very gentle conversation and the judge later referred to this conversation when expressing his views on the case so far: 

[P’s wife] purchased a new smaller property to live in, downsized, and in order to make that purchase she used some of his half for a property that he would not be living in, and transferred £12,000 from what was left over to install a new bathroom, windows and fireplace in the property. They [i.e. family] say – without specifying the exact reason –  that it’s what he would have wanted, yet you [OPG] say it’s a breach of fiduciary duty. Now, I have to say I have a lot of sympathy with their position at present. So, it’s quite common when one person develops dementia and the couple have been married for decades, one person needs to go into a care home, and the remaining spouse no longer needs a property of that size, sells a matrimonial home and moves into a new property. It’s sufficiently common that it’s dealt with in the financial assessment process to look at a spouse’s capital. The Care and Support [charging and assessment of resources] Regulations 2014. What they say is that if one’s spouse goes into a care home, the value of the property is ignored if the other spouse remains living in the property and also if any incapacitated people are living in the property. Then they say that if that property is sold and the remaining spouse moves into smaller property the Local Authority can ignore the value of what’s now the substitute property. [The judge gave an example of a partner living in a care home who makes their financial half available to their partner to purchase a property] …. It is normal for this to happen, to move into a smaller property. It would be unfair to take this new property into account. It’s still the case that [P] has a 50% share in the property. The only arguable ‘gift’ is the 12K for repairs. It seems unfair to take exception to that. It would be saying they can’t move into a property that needs repair. 

What would you say to that?

I thought, at this point, that DJ  Eldergill was taking a very human, relational approach (yet still aligned with the law, as he set out clearly) to people’s finances, rather than the technical, ‘fiduciary duty’ approach that the system gets mired in when working out who should pay for what when people need care. The judge mirrored these thoughts in his next remarks. 

Tom Francis: I can see the course the court is going in regard to that. It is not the entirety of the case. 

Judge: My more global concern … and the court is at fault here with some of our decisions…. taking too technical a view. The court has been asked to investigate an estate on the basis the money has been misused. That’s an extremely expensive option. It’s not ideal we have a solicitor interposing themselves into a marriage that has lasted many decades. I asked [P’s wife] about her marriage and she has explained that she has [referred to vows taken many years ago, sharing a life together and that the undertaking is ‘until death us do part’]. The pledge is to share what you have. That’s how marriages work after 40 plus years. You share. A best interests decision takes into account his wishes, feelings and values.  And the idea that he wouldn’t want his wife to have somewhere reasonable to live and the idea he would want to retain 50% for himself, I find a strange view. I am asking you to reconsider whether this is worth pursuing, to put his wife and son through this, frankly. Can we try and agree some directions? You have a right to proceed. Can we recite that the OPG has agreed to review whether to proceed with the application?

Tom Francis: Yes, I will feed back to those instructing me. All I would say …. the application is predicated more … the OPG concern is that if it looks like [P] is going to remain in the care home for many years he may need more liquidity available to him.

There was discussion about whether a previous bank standing order was to remain in place – I understood this to be a standing order that P had set up some time ago to transfer money to his wife (and the Position Statement confirms that P set it up ‘many years ago’). 

Judge: But look, the standing order was made when he had capacity? 

Tom Francis: Yes, but we say the rationale no longer holds

Judge: He made that standing order to his wife and never cancelled it himself. It was a decision made with capacity. I need to be careful about overriding something he did when he had capacity and never revoked when he had capacity. In terms of whether it might become unaffordable, there are two approaches: the judge knows best or [P’s wife] knows best. At the end of the day [P’s wife] was the person he trusted, based on years of marriage, to make these decisions for him. I’ve never met him, I don’t know why I would think I would know better than she does. That’s the point of the LPA – you choose someone you trust. I struggle to see that she’s done anything that many spouses wouldn’t have done in this difficult situation. Let’s phrase it like this: we recite upon the court inviting the OPG to review whether it is in [P’s] best interests to continue. The court is expressing reservations about the application by the OPG. 

Directions

DJ Eldergill’s position at the end of the hearing was as follows:

I have to say, just on what I have read so far –  and I haven’t heard the Special Visitor’s oral evidence – as a general principle, I would prefer the evidence of an experienced solicitor who certified capacity at the time rather than someone’s retrospective judgment some time later. If it is done properly by a solicitor they have to satisfy themselves that the person understands and has capacity. We do have an experienced solicitor and an RMN stating that he understood what he was signing. That may change when [the Special Visitor] gives her evidence. I don’t think the presumption of capacity has yet been rebutted. The point of a trial is to hear the witnesses.

Tom Francis clarified the recitals that the judge was directing in preparation for a final hearing (should the OPG decide to proceed). I think I am right in stating that these were: 

• To invite the OPG to review whether it is in P’s best interests to continue with the application
• That the OPG must enquire about the existence of the May 2017 LPA
• That, if the OPG decides to proceed, oral witness evidence will be required regarding whether the two LPAs were valid at the time they were made

DJ Eldergill had a conversation at the end with P’s son about whether he might need to be present (probably not) and the format of the hearing: 

P’s son: Would it be video link?

Judge: What would you prefer?

Son: Yes. Where we are it would take a long time to get to London.

Judge: We’ll do it by video. It’s important that you’re both comfortable. You’ve had to adjust today. If we do go ahead, we’ll try to make sure you’re comfortable for the day.

Son: Gotcha. 

Reflections

I found this hearing gripping, mainly because the judge cut through what is presented as a very reasonable, clear-headed challenge (yet no doubt quite scary for the family to read in such sharp legalese) in such a human and compassionate manner.

On the one hand, the OPG is responding to ‘concerns’ (though I did not learn who raised those concerns) that P’s money is being misappropriated, and is also alleging that P lacked capacity to make the existing LPA. In any event, the OPG is proposing that, even if P did have capacity to make the LPA, his wife as LPA is mismanaging his money. 

On the other hand, the human story is that P and his wife have been married for over 40 years. P, many years ago, capacitously set up a standing order to his wife, for his own personal reasons, that he has never revoked. He also appointed her as his attorney (and his son as his replacement attorney) in an LPA that was certified by a mental health nurse and a solicitor (or as Tom Francis clarified, a ‘consultant private client’ to a solicitor’s firm. The judge said that ‘Consultant normally means a solicitor but a semi-retired person’). P’s wife – lawfully,  according to the judge – sold their marital home, bought a smaller home in both of their names (even though P was never going to live there) and used some capital to make the house habitable. 

I don’t know how much it costs organisations to make applications to the COP and arrange representation. I started to try to calculate the potential costs, but the range for fees is so wide that I abandoned the exercise. There are deputyship applications to the court, barristers’ fees, if there is a court hearing there is a court fee, as well as costs of the court staff and judges’ salaries. Then if a financial deputy is appointed, the fees for that official and the administration involved. 

In this case, P is on the deeds of the new home that his wife lives in. It seems, from what DJ Eldergill said, that there are rules that stipulate the property a spouse is living in is to be ignored, for the purposes of assessment of resources, and further, that any replacement property can also be ignored. P’s wife had registered the new home in both her and P’s names, so he still has a 50% financial interest in the new home. This area seems quite a minefield, because I also found this information on an Age UK leaflet, which seems contrary to the judge’s remarks: 

“If your spouse, partner, or other relative lives in a disregarded property, they may decide to move somewhere smaller or more manageable. The existing disregard only applies to your original property and once it is sold, your share of the proceeds of sale can be taken into account as capital in your financial assessment.”

I am assuming that the Local Authority will have carried out a care needs assessment and agreed a funding arrangement for P’s care, prior to him entering the home.  My understanding (though I am not an expert in this by any stretch) is that a deferred payment arrangement can be agreed, such that when your spouse or partner dies, then the care home fees are paid from the 50% share of the estate of the partner living in the care home.  Otherwise, how can the partner who wants to move to a smaller place afford to do this, without the money from their jointly owned property? Half the money is not likely to equal a whole house for the remaining partner. 

Whatever the legalities,  it feels as if we are in a terrible mess in this country, when the life of a couple who have been married for over 40 years can be intruded upon to such an extent that the OPG considers it proportionate to question an LPA that had been certified, including by a mental health nurse, for what would actually be quite a small amount of money (given the ignoring-the-existing-and-subsequent-property guidance). I am concerned, too, about proving, retrospectively, that someone lacked capacity for a decision when others, there at the time in a professional role, certified that they were satisfied that the person retained capacity to sign. 

If I have understood it correctly, the OPG would wish to be able to reclaim P’s 50% surplus from the sale of the marital home (I think the £12k that was used for renovations), and the standing order money that transfers to his wife monthly, which is in the order of £200 per month (and which P’s wife uses to buy him things in the home and to visit him by taxi because it is not an easy journey for her). Unless they are also proposing to make P’s wife sell her new home and release his 50% from that property, which I don’t think was the case. There is a wider issue here. The ‘care’ of a person is not only financial – ‘care’ also means maintaining the important relationships that have sustained that person throughout their life. Money can be used for the instrumental tasks and bricks and mortar and staffing to look after people no longer able to look after themselves – none of that will ever replace the love, affection, companionship and shared memories of family and friends, which are priceless (even in advanced dementia, when the feel of someone familiar’s presence might be so important. See here and here).

So, even if, legally, there is some money that should be set aside for P in a more transparent way, surely it would be much more compassionate (not to mention cost-effective, as the judge commented) to provide advice and guidance to P’s wife to enable that to happen. This does not seem like a case of a person pocketing money for their own benefit – the new house is in both names, she uses money for his practical needs and for transport to the home to maintain their connection. If I were the one in a care home, I would certainly want my partner to use as much of ‘my’ money as legally allowable for him to live comfortably and to keep us in regular contact. 

The only gap in this hearing for me – and this might be because there have been other hearings that I didn’t attend, where it happened – was that P as a person was not brought to life. DJ Eldergill did, however, clearly centre the couple’s marriage and their commitment to one another. P’s wife and son appeared to feel supported by both the judge and by Tom Francis, who explained to them (prior to the judge joining the hearing) what to expect. 

I hope that the OPG will reconsider their application to the court. Lewy Body dementia is enough for P and his family to contend with, without an application brought, arguably, on the basis of ‘pettifogging’. 

Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core group of the Open Justice Court of Protection Project and has published several blog posts for the Project about hearings she’s observed (e.g. here and here). She tweets @DocCMartin

---

^[1] _{Quotations from the hearing are based on my contemporaneous notes.  They are as accurate as I can make them but, since we are not allowed to audio record hearings, they are unlikely to be entirely verbatim.}