SF, Re  EWCOP 68 (26 October 2015) – read judgment
This Court of Protection case has, unusually, made the papers, and when you read the details you won’t be surprised. What the judge described as a “callous and calculating” son charged his widowed mother, who suffered from dementia, more than £117 000 for “out of pocket expenses” visiting her in her nursing home. He had been in charge of her expenses since 2004 when Sheila (the mother) had been admitted to hospital under the Mental Health Act 1983. But alarm bells only went off after her unpaid nursing bills reached nearly £30 000. The Public Guardian launched an enquiry that led to this hearing of an application for the court to revoke the son’s (Martin’s) Enduring Power of Attorney (‘EPA’) and to direct him to cancel its registration. The Public Guardian also applied to freeze Sheila’s bank account.
Background facts and law
There was an ongoing dispute in the run up to the application in this case. Martin claimed that his mother’s care fees should have been publicly funded under section 117 of the Mental Health Act 1983, but the Powys Local Health Board contended that, although Sheila was sectioned under section 2, she was never sectioned under section 3 of the Mental Health Act 1983 and was, therefore, not eligible for public funding under section 117 of the Act. In the light of this, the Public Guardian believed that while Martin attempted to resolve this dispute, it would be in Sheila’s best interests that he continued to pay her care fees.
If it transpires that she qualifies for NHS Continuing Health Care and has been eligible for a period of time, then Martin will be entitled to claim a refund on overpayment of care fees.
As it happened, Martin claimed his usual daily charging rate when he was a self-employed independent consultant prior to his retirement. He stated in his witness statement that he did not think this self-remuneration was excessive:
If I had not spent the large amounts of time on this case, then my mother’s estate would still be illegally paying the full costs of care.
The Court’s decision
It did not take long for the judge to issue the order revoking Martin’s power of attorney. One would be “hard pressed”, he declared,
to find a more callous and calculating attorney, who has so flagrantly abused his position of trust. Martin hasn’t paid his mother a personal allowance since June 2014 because toiletries were free in her previous residential care home and he resents having to pay for them now in the nursing home in which she has been living since February 2013. He even begrudges her having her hair tinted.
Indeed, so provoked was the judge by the son’s attitude in this case that he was prepared add his own thoughts to the Public Attorney’s claim, that the amount of £117,289.45 was ‘an excessive amount to claim for out of pocket expenses.” Senior Judge Lush (the new title of the former Master of the Court of Protection) stated that
charging one’s elderly mother a daily rate of £400 for visiting and acting as her attorney is repugnant.
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