Balancing responsibilities

The rules surrounding paying for care are complex. The first tranche of reforms under the Care Act 2014 came into effect on 1 April this year, and are likely to raise further questions. The rights and responsibilities of deputies and attorneys can appear so complex at times, that they verge on becoming overwhelming. However one of the most commonly asked questions; 'Can I refuse to pay my mother/father's care home fees?' seems relatively simple to answer.

The Court of Protection's (CoP) decision in Re OW The Public Guardian v JW [2014] EWCOP B24 set out the view of the court where this arises.

The attorney had refused to pay his mother's care home fees, claiming that she was entitled to receive continuing healthcare. The attorney said: 'The only lever I have in trying to get them to do their jobs properly is by withholding payment for the care my mother receives'.

The court responded that this argument of 'the only lever' was completely unacceptable; the attorney should have paid the care home fees on the basis that they would be refunded if his mother had been eligible for continuing healthcare. The attorney was removed and a panel deputy was put in his place.

It was therefore with interest that I read the court's decision in Re DT The Public Guardian v IT, PT and MT [2015] EWCOP 10, handed down at the end of February this year. At first glance the two cases appear broadly similar. However the outcome of Re DT was markedly different.

DT was a 71 year old man who suffered from vascular brain disease and acquired brain injury and chronic alcoholism. He had three sons who were the respondent attorneys. DT was resident in a care home, while his wife lived in a one bedroom apartment. The former matrimonial home was rented out and produced an income.

The Public Guardian had previously applied to the court for an order that the attorneys provide full accounts of their dealings with their father's property, financial affairs and, if they failed to provide satisfactory accounts, that the enduring power of attorney appointing them be revoked, and the local authority be invited to apply to act as deputy.

The application arose because DT's care home fees were in arrears of £19,624 and, was consistently being underpaid by £100 each week. By the time of the hearing, the arrears had risen to nearly £70,000. The income generated by letting out the matrimonial home went directly to DT's wife's account, notwithstanding that they were joint owners of the property.

Accounts were filed, although late, along with a statement from one of the attorneys. In that statement he made clear that the attorneys had tried to balance the needs of their father on the one hand, and their mother on the other. He said that their father's income would have maintained both of their parents, but for his need for residential care. Their mother would have continued to live in the matrimonial home had she not required the support of her children, which forced her to move to a flat closer to them.

The CoP's special visitor assessed DT, who became unmanageably hostile when asked about his finances. He stated repeatedly that he was happy with his sons managing his financial affairs. The special visitor was of the view that DT had capacity to revoke the EPA if he chose, and that he did not choose to revoke it.

Consequently the court declined to revoke the EPA, stating that the attorneys' conduct had not had a sufficiently detrimental effect as to justify overriding DT's wishes. Further it was noted that paragraph 3(2) of schedule 4 to the Mental Capacity Act 2005 allowed attorneys acting under an EPA to act to benefit the donor, or other person that the donor might be expected to provide for, to the extent that the donor might be expected to do.

While the two cases might appear at first glance to contradict each other, the court's comments that there was no evidence of dishonesty on the part of the attorneys, and no suggestion that they had misappropriated their father's funds in the case of Re DT, distinguishes it clearly from the case of Re OW. 

Leah Steele is a solicitor at Hugh James

She writes the regular vulnerable clients comment in Private Client Adviser