Best interests

 In Elderly/Vulnerable Client

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Re HH [2018] EWCOP 13

Case Summary from LawSkills | Private Client specialist trainersThis is a classic case of an attorney trying his best to look after his severely disabled father but having no regard for the proper management of money and resources. It examines the payments made to the attorney, his family, carers and his brother and tries to establish from oral evidence and work done by the Debt Recovery officer at the Local Authority what should be retrospectively approved and what should not.

The facts

Both HH (the father) and TH (the attorney) were artists and not good at managing money. EH (the mother) seemed to have managed the family finances – she needed help looking after HH and also her end of life. She worried about the case needed to look after HH.

TH and his brother JPH had an unhappy relationship which had been fraught for many years and prevented the resolution of this matter without court proceedings.

TH admitted he was poor with money management; had intermingled his father’s money with his own and used HH’s money to help provide for his own family in Ireland. There was also some issues around the cost of respite care and how the contracts were managed.

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All in all there was no proper documentary evidence over how the £99,500 of HH’s money had been spent.

HH eventually had to go into care and the local authority now pick up his care costs. There was no dispute that TH had cared for his father well – he just had been hopeless about managing his money.

There was clear evidence that EH and HH wanted their two sons to benefit equally from their joint resources, taking into account lifetime gifts.

The law

The law on retrospect approval of payments stems from:

  • Paragraph 3 (1) Schedule 4 Mental Capacity Act 2005 (MCA 2005) which gives an attorney under an EPA the power “to do on behalf of the donor anything which the donor could lawfully do by an attorney at the time when the donor executed the instrument.”
  • The power permitted is to act so as to benefit persons other than the donor only insofar as the donor may be expected to provide for that person’s needs – para 3(2) Sch 4 MCA 2005 but this can include making payments to family members for providing care however, if this puts the attorney in a position of conflict of interest the attorney should apply to the court for approval of such payments – Re Buckley [2013] COPLR 35
  • In relation to gift giving an attorney can only make gifts of a seasonal nature or on an anniversary of a birth, a marriage or the formation of a civil partnership, to person (including himself) who are related to or connected to the donor – par.3(3) Sch 4 MCA 2005. The value of the gifts must be reasonable having regard to all the circumstances, in particular the size of the donor’s estate.

The court has the power to authorise payments made whilst the donor lacked capacity; also, insofar as the patient lacked capacity but the EPA was not registered the court has the power to approve payments retrospectively – this was confirmed in Re GM [2013] WTLR 835.

The test for approval is the best interests test under s.1(5) MCA 2005.

The OPG Guidance on family care payments says that:

“….payments to enable such care can be in the client’s best interests, provided the factors this guidance outlines are considered. When managed properly, it is often best for everyone if the client gets a combination of professional care and care from a family member, thereby enhancing the quality of family life while also providing respite for the family member.”

The decision

The Judge carefully looked at what spending by TH could be justified as ‘wages’ for looking after his father and what amounted to ‘gifts’ – of which some might be retrospectively approved.

The outcome of the review was that out of the disputed £99,500 used, £72,820.29 was approved as were the gifts made to JPH and his family (£15,196.05) and the payments to the carers.

The Judge acknowledged that the Court of Protection has no jurisdiction to order TH to repay the sums which were not approved. It was also not in HH’s best interests to pursue the sums by litigation. TH volunteered to no longer be the attorney and a panel deputy will be appointed which will use up a significant property of HH’s income in future. Instead, the Judge said the unapproved sums should be accounted for using TH’s share of the residuary estate of HH and if that share was insufficient to cover them then it should be treated as a debt due from TH to HH’s estate.

Practice points

  1. Practitioners should always ensure that an attorney knows his responsibilities by referring the person to the Code of Practice and guidance issued by OPG.
  2. To protect donor’s we should include provisions in the power of attorney making it clear that accounts have to be prepared annually and approved by say the donor’s accountant or solicitor.
  3. Ensure always that the attorney is made aware of the restrictions on making gifts in s.12 MCA 2005.


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Case Summary from LawSkills | Private Client specialist trainersCase Summary from LawSkills | Private Client specialist trainers