The facts
ED was born on 11 April 1918 and has vascular dementia.
She used to live in Marlow, Buckinghamshire, but since 10 January 2015 she has lived in a residential unit in Stoke Mandeville, which provides specialised dementia care.
Her husband died in 1984.
She has two daughters:
(b) GB, who is 58, lives in Berkshire and is a radiographer.
ED's daughters don't see eye to eye. In fact, they detest each other. According to JD, the two of them have been in the same room together on five occasions during the last five years, and on each occasion GB has refused point blank either to speak to her or even acknowledge her presence. The only communication between them is by email, and this is usually rancorous in tone.
On 25 September 2007 ED executed an EPA in which she appointed her two daughters jointly to be her attorneys, with general authority to act on her behalf in relation to all her property and affairs. Her signature was witnessed by a friend of the family.
On 27 September 2007 GB executed Part C of the EPA and her signature was witnessed by a work colleague. She then posted the document to her sister.
JD executed Part C of the prescribed form in the presence of a friend on 30 September 2007, which was the last day on which it was possible to create an EPA. On 1 October 2007 the Mental Capacity Act 2005 came into force, and EPAs were replaced by Lasting Powers of Attorney.
JD sent GB a photocopy of the executed EPA and the original document was put away in a drawer, to be brought out only when the attorneys had reason to believe that ED was, or was becoming, incapable by reason of mental disorder of managing and administering her property and affairs.
At some stage, and it doesn't really matter when, JD downloaded a new page 2 from the internet, and changed the attorneys' appointment from 'joint' to 'joint and several.' JD says that this happened during the spring or summer of 2008. GB believes it occurred much later, in 2013, immediately before JD applied to the Office of the Public Guardian ('OPG') to register the EPA.
On 6 September 2013 GB phoned the OPG to enquire about the progress of JD's application to register the instrument and discovered for the first time that the nature of the appointment had been changed from 'joint' to 'joint and several'. She made vociferous representations to the OPG but, nevertheless, the EPA was registered on 9 September 2013.
The application
On 5 December 2014 the Public Guardian applied to the court for the following order:
An order under Schedule 4 paragraph 16(4)(g) directing the PG to revoke the EPA and to cancel the registration of the EPA made by ED. Should the EPA be revoked and registration cancelled, then a member of the panel of deputies should be invited to make an application to become ED's deputy for property and financial affairs.
On 16 December 2014 I made an order listing the matter for an attended hearing on 18 February 2015, and set out a timetable for filing and serving evidence and submissions. Following a request from JD for additional time, the date of the hearing was postponed to 19 March 2015.
On 12 January 2015 GB filed a witness statement, in which she described her version of events and on 10 February 2015 JD filed a witness statement, in which she said as follows about changing the type of appointment:
On 11 March 2015 Laura Knight of the OPG made a witness statement, in which she said as follows:
(a) A full description of the circumstances in which the EPA was created :
(b) Details of the date on which page 2 was amended from 'jointly' to 'jointly and severally'
(c) Who made the amendment on page 2 from jointly to jointly and severally and why they made the amendment?
(d) Who witnessed the amendment made on page 2 from jointly to jointly and severally?
Each respondent filed a further witness statement on 17 March 2015.
The hearing
The hearing took place on Thursday 19 March 2015 and was attended by:
(b) the respondents in person.
JD said that her mother still owns her house in Marlow, which is worth between £550,000 and £600,000. In addition, she has some stocks and shares and other savings amounting to approximately £100,000.
ED's income is roughly £1,200 a month and her principal outgoings are her care fees, which are currently £940 a week. She may eventually become eligible for NHS Continuing Health Care, but she is not eligible at present.
GB expressed her annoyance that JD had placed their mother in a care home without consulting her. Although GB conceded that the care home is very pleasant, her mother now lives twice as far away from her as she used to. The journey to Stoke Mandeville takes GB between 90 minutes and two hours, whereas previously, when ED lived in her own home in Marlow, the journey only took 35 to 40 minutes.
JD said that she had looked at eight different care homes and took ED to see several of them. JD has visited her mother every day, whereas GB visits only once a week or once a fortnight and her children never visit of their own volition.
Decision
In addition to any other offence she may have committed, when JD applied to register the EPA, she completed a form EP2PG, in which she stated that the attorneys had been appointed to act jointly and severally. She knew that this statement was false.
Paragraph 4(7) of Schedule 4 to the Mental Capacity Act 2005 provides that:
These provisions more or less replicate those in section 4(7) of the Enduring Powers of Attorney Act 1985, though the 1985 Act provided a maximum sentence of six months' imprisonment on summary conviction.
The reason for including criminal sanctions in the EPA legislation was discussed by the Law Commission in its report, The Incapacitated Principal (Law Com No 122, Cmnd 8977), which was published in July 1983. Paragraph 4.101 of the report stated that:
The Court of Protection has no criminal jurisdiction as such. Any decision to prosecute JD would be a matter for the Crown Prosecution Service, and any charge brought under paragraph 4(7) of Schedule 4 to the Mental Capacity Act 2005 would be for either the Magistrates' Court or the Crown Court to determine.
Although there may be sufficient evidence to ensure a realistic prospect of conviction, it has never been the rule in this country that every criminal offence should automatically be prosecuted, and I doubt whether a prosecution in this case is really necessary in the public interest. It would probably cause ED significant distress, which would definitely not be in her best interests.
Paragraph 16(4) of Schedule 4 to the Mental Capacity Act 2005 provides that:
In my judgment, any attorney who dishonestly attempts to undermine the registration procedure by making a statement she knows to be false is unsuitable to be the donor's attorney. JD is no exception and, notwithstanding the natural love and affection between them and the undoubted support she has provided to her mother in recent years, I find her unsuitable to be the donor's attorney.
In addition, I consider that JD and GB are both unsuitable to be their mother's attorneys, and also unsuitable to be her deputies for property and affairs, because of the intense acrimony between them.
In Re W (Power of Attorney) [1999] 2 FLR 1163, Jules Sher QC, sitting as a deputy judge of the Chancery Division of the High Court held that:
That is not to say that this court approves of the strident tones in which Mrs X's correspondence is couched. It is earnestly to be hoped that after all this wasteful litigation she can find it in herself to conduct the family's affairs in a more congenial and co-operative manner."
Mr Sher's decision was subsequently upheld by the Court of Appeal, in Re W (Enduring Power of Attorney) [ 2001] 2 WLR 957, and was applied by Mrs Justice Arden, as she then was, in Re E (Enduring Powers of Attorney) [2000] 3 WLR 1974 , and Mr Justice Patten, as he then was, in Re F [2004] 3 All ER 277 . In Re F , at page 284f, Mr Justice Patten said:
In this case there are strategic decisions to be made, such as the sale of the house in Marlow, and the obvious hostility between the two sisters would almost certainly have a negative impact on the administration of ED's estate. Each would wilfully try to frustrate any action or decision initiated by the other and nothing would ever be achieved.
The appointment of someone independent, such as a panel deputy, is not merely desirable but essential and, having regard to all the circumstances, including ED's advanced age, her anticipated life expectancy and the extent of her assets, it is unlikely that the additional costs incurred will be disproportionate.
Accordingly, I revoke the EPA pursuant to paragraph 16(4)(g) of Schedule 4 to the Mental Capacity Act 2005 and direct the Public Guardian to cancel its registration. I shall also appoint a panel deputy to make any decisions on behalf of ED which she is incapable of making for herself in relation to her property and financial affairs.