State of play: case summaries

Re AB

This case demonstrates the need for attorneys to keep their financial affairs separate from those of the donor, and to ensure that the interests of the donor are always paramount.

The application was brought by the London Borough of Brent to revoke an enduring power of attorney (EPA) made by the donor, AB, as it was concerned with the outstanding care fees due on AS’s behalf (£49,000).

AB had appointed two of her four nephews as the attorneys, and they registered the EPA with the Court of Protection on 27 September 2007,
after AB was diagnosed with dementia.

AB lived in her own home in Cricklewood until July 2006, when her nephews decided she was becoming too frail and forgetful to continue living there. After a short stay with her sister-in-law, Maureen (the attorneys’ mother), AB moved into a nearby flat owned by her nephews.

During AB’s six-month occupation
of the flat, she paid rent, other outgoings, and the cost of refurbishing the flat (£7,040.31) to her nephews, despite the fact that one of the nephews undertook the refurbishments himself. Thereafter they decided that AB couldn’t live in the flat independently, so she returned to live with Maureen for one year before moving into residential care.

During this time, AB’s home was rented to a housing association, but the tenant was troublesome and eventually evicted. The property was sold for £200,000 to the attorneys’ sister – a
price based on the sole offer received.

The attorneys also made a number of payments from AB’s estate, including £15,000 to Maureen for a car (of which only £8,595 was used to purchase the car), and loans of £10,000 and £40,000 to their other brother to assist him with a property purchase. The nephews also failed to explain withdrawals from AB’s estate of £60,020.68.

An EPA can be revoked under a number of circumstances, including if the attorney is unsuitable. Senior Judge Lush commented that there was a clear challenge to the nephews’ competence and integrity as AB’s attorneys. They had contravened their authority as attorneys and behaved in a way which was not in AB’s interests. Given that AB owed £49,000 to the London Borough of Kent and was owed roughly £60,000 by family members, this constituted a “hash” of financial management. The judge also felt that the nephews had exceeded their gift-making capacity.

The judge cited the 2005 Mental Capacity Act Code of Practice, 7.60: “A fiduciary duty means attorney must not take advantage of their position. Nor should they put themselves in a position where their personal interests conflict with their duties.”

The judge stated that the nephews had breached their fiduciary duties in several ways and therefore revoked the EPA. The judge thought the cost of appointing a panel deputy would be disproportionate, and instead agreed that the applicant should be appointed as the deputy, particularly having regard to
their funding the majority of the care
fees for AB.

This case highlights that financial decisions should always benefit the donor, not the attorney. Attorneys must not profit or get any personal benefit from their position, apart from receiving gifts where the act allows it.

Re AB

This case provides guidance on making out-of-hours applications for adults or children regarding medical treatment or the withholding of medical treatment.

The hearing followed a declaration which an NHS trust sought from the court regarding a patient, AB, and her capacity to make decisions about serious medical treatment, and whether it was in her best interests to receive life-sustaining treatment.

AB was a 20-year-old woman who was blind, hard of hearing, had a severe learning disability (cerebral palsy), severe kyphoscoliosis, type 2 diabetes, epilepsy, hypothyroidism and hypoadrenalism.  She was fed through a nasogastric tube and was faecally incontinent. She was mostly bed-bound but could occasionally sit in an adapted chair, and her parents mainly cared for her in the family home.

In June 2014, AB was admitted to hospital following a few days of illness; she was diagnosed with pneumonia and transferred to the intensive treatment unit (ITU). She was initially discharged to a ward, but, having deteriorated further, was re-admitted to the ITU.

The clinical team’s view was that if AB deteriorated further, it would not be in her best interest to receive certain life-sustaining treatment.  Initially the parents agreed, and a DNR form was completed. The parents later disagreed with the proposed treatment and asked the trust to either remove the form or make an urgent application to court.

The trust made an application at 5.15pm on 20 June 2014, with the order approved at 10.45pm that evening. Mrs Justice Theis DBE raised concerns about the timing and practical arrangements of the out-of-hours hearing and provided the following guidance.

She felt such applications should be made earlier rather than later to ensure that safeguards were in place to allow for an effective hearing, while ensuring that suitable and sensitive arrangements were made for the parents to participate in the hearing.

For this application, AB’s mother had participated in the hearing from a public waiting room in the hospital.  The judge said the hospital should have made more effort to facilitate the parents’ participation in the hearing. Every effort should have been made to ensure the parents’ solicitors were able to represent them in such an important hearing. Furthermore, if the application had been issued earlier, the parents’ solicitors would have been more likely to have secured public funding for the hearing.

The judge wanted to make it entirely clear that the trust must ensure that all parties are equally able to decide cases involving life and death. This would involve equal representation, which did not happen in this case.

In urgent matters such as AB’s, the Urgent Applications Judge and the Clerk of the Rules should be notified of a likely application at the earliest opportunity. If appropriate, an application should be made for a direction that the Official Solicitor be invited to act on behalf of the patient.  Such a request should be made as soon as possible so that the OS has sight of any paperwork and makes the necessary investigations and enquiries prior to the hearing.

The statement in support of the application must give information regarding the history or quality of the patient’s life, along with medical and clinical evidence justifying the application.

The judge recommended that effective contingency plans for a likely application are made at the earliest opportunity. Draft orders should also be made available in written format so amendments can be made promptly.

Such guidance will be most useful for similar out-of-hours provision applications regarding the application ?or withholding of medical treatment.n

Hart and Hart v. Burbidge and Burbidge

This case involved the estate of Phyllis Hart and whether lifetime transfers of money and property to her daughter and son-in-law, Mr and Mrs Burbidge, were brought about by their undue influence over Mrs Hart, as alleged by the claimants, the Harts, who are the dependent’s two elder brothers, and other relatives who were to have inherited the transferred property under the deceased’s will.

The presumed undue influence concerned three transactions, together referred to as the “impugned transactions”, which took place between February and October 2008, shortly before the deceased’s death in November 2008. 

The first was a gift of £290,000 cash, and the second and third involved the proceeds of the sale of two properties. The Burbidges received £700,000 from the impugned transactions, which they used to purchase Little Manor Farm, where they planned to live with the deceased. The deceased moved into Little Manor Farm with the Burbidges but died just a few days later.

At first instance Deputy Judge Sir William Blackburne found that the relationship between Mrs Burbidge and her mother was one of trust and confidence, reliance and dependence, and that the nature, timing and effect of the transactions were such that they did call for an explanation. This created a presumption of undue influence that Mr and Mrs Burbidge’s counsel were unable to rebut. The Burbidges were ordered to reimburse the deceased’s estate, putting the claimant beneficiaries in the position they would have been in had the gifts been made in accordance with the deceased’s will, and had the gift of £290,000 to the Burbidges not been made.

The Burbidges appealed on a number of grounds, all of which were rejected by the Court of Appeal. Their main argument was that the impugned transactions did not require an explanation. However it was held that the gift of £290,000 did indeed call for an explanation as this sum constituted the vast majority of the deceased’s cash and by giving it, the deceased had relinquished her security, her income and her ability to live alone. 

The Burbidges argued that the transaction could also be explained by the deceased’s disagreement with the Harts. The Burbidges said that the Harts’ conduct towards their mother had been such that she wished to deprive them of any inheritance, but this was rejected by the court. 

The court held that the sales of the properties were also transactions which required an explanation. Even though there was evidence that the proceeds of sale had been lent rather than gifted to the Burbidges, the court held that the loan the Burbidges put in place should not stand: it was unsecured, interest free, and not repayable until the deceased’s death, and it was therefore highly disadvantageous to the deceased.

As a result of the impugned transactions, the deceased lost the lion’s share of her income and capital without any secured charge and without receiving a share of Little Manor Farm. The fact that she had sacrificed so much in exchange for accommodation with the Burbidges, which might not even have worked out, was also found to be ?of significance. 

The court also upheld the decision at first instance that the executor’s costs should be borne by the Burbidges as it was their actions which had precipitated the claim. n

Re GM

GW was a 48-year-old woman who suffered from Huntingdon’s Disease. In January 2013, she was placed at a secure unit under Section 7 of the Mental Health Act 1983.  In May 2013, an urgent authorisation was granted to prevent her leaving the unit without supervision and support. An application was subsequently made to the Court of Protection on behalf of GW under Section 21(a) of the Mental Capacity Act 2005, challenging this authorisation. District Judge Jackson declared, pursuant to s.48 of the Act, that the court had reason to believe that GW lacked capacity to decide whether and when to leave the care home unescorted. In July 2013, GW filed a notice of appeal against this order. 

The professional evidence concluded that, despite having the capacity to litigate, GW was not able to make decisions regarding leaving the unit unescorted, or as to her future residence and care. Judge Marston, having considered the decision in P v Cheshire West and Cheshire Council and another [2014] UKSC 19, agreed with the experts and reached the same decision.

Marston J refused leave to appeal on the extent of the Court of Protection’s powers under s.48 to authorise a deprivation of liberty. It was argued that these powers are contrary to the purpose of the statutory framework and are incompatible with Article 5(4) of the ECHR. This was not considered on appeal by Judge Baker as to do so would have amounted to a second appeal of the issue.

GW appealed on the grounds that she did have capacity. More specifically, that Marston J had abdicated the court’s function by failing to consider the way in which professionals’ opinions had been reached; had failed to attach proper weight to the evidence given by GW herself; had wrongly mistaken the diagnostic test for the functional test (found in the statutory definition of capacity in the 2005 Act); and that no regard had been given to the statutory principles in Section 1(3) and (4) of ?the Act.

Baker J set out the evidence and the assessment carried out by Marston J, and noted in his judgment that GW must be seen to have capacity unless it was proven on the balance of probabilities that she did not. The expert evidence indicated that GW lacked capacity with regards to leaving the unit and that the evidence was “overwhelming”.  Baker J concluded that the judge carried out his own analysis of whether the functional test was satisfied, having referred to the opinions of professionals, and came to the same conclusion on the “overwhelming” evidence.  

Baker J also noted that only limited weight could be attached to GW’s evidence.  The question was whether in practice GW had the ability to apply insight and understanding about road safety and appreciate the risks that might arise every time she walked into town. The evidence suggested that she did not. Huntington’s Disease results in a cognitive deficit which amounts to an impairment or disturbance in the functioning of the mind, which caused real risk to GW when she was out because of the effect it had on her ability to process all the information required for her safety and also the safety of others.

Karen Bayley is a solicitor at Barlow Robbins

She writes regular case updates for Private Client Adviser

 

Heather Viljoen is a solicitor at Michelmores

She writes regular case updates for Private Client Adviser