Court of Protection – Part 7
The next case to look at is the case of Re OW: Public Guardian v JW  EWCOP B24 – a very catchy title.
This concerned an elderly lady OW, she met her husband in Egypt during WW2 and they married in 1947. They had two children, a son (JW) who lives in Brighton and a daughter. Her husband died in 1992. She lived with her son (and his partner) for a period of approximately 10 years, in rented accommodation. On a very blustery day in September 2011, when she went out and fell over and broke pelvis, she was taken to hospital and was discharged into a care home in November 2011.
Her son, who was appointed as sole attorney under a Lasting Power of Attorney applied for NHS Continuing Care Funding (CHC) for her and in February 2013 she was found not to be eligible. She had been moved into a new home and the social worker checked with the staff at her former home, who were very familiar with her. Her former carers agreed that the assessment was fair and that she was not eligible.
Because her son thought that she should be eligible, he refused to co-operate with the financial assessment by the Local Authority and did not pay her care home fees. This triggered a safeguarding assessment by the Local Authority who reported the matter to the Office of the Public Guardian to investigate. He also did not provide his mother OW with an allowance for her to spend (in accordance with Local Authority funding, someone is allowed to keep £23.50 per week of their income for their own expenditure). On investigating these issues, it became clear that JW had been using her funds for his own purpose to support his lifestyle. Although it was accepted that if OW, JW and his partner were all living in rented accommodation together prior to her fall, it was reasonable that OW contribute towards the household expenses. What had been happening was that OW had funded all of the rent and utilities. In addition JW had loaned himself and his sister some money from his mother’s funds. She had moved into care in November 2011 and paid the rent on the home until February 2012! JW felt that by not paying her care fees, he was making the point that he believed she was eligible for CHC.
So what did the Court do? They revoked the Lasting Power of Attorney and appointed a Panel deputy to sort out her finances. The Lasting Power of Attorney had provided for OW’s daughter to be the substitute attorney, but her affairs were in a mess as a result of her son’s financial misconduct. Therefore the Court went on to say that once on a “even keel”, the Panel Deputy could consider stepping down in favour of OW’s daughter, if they considered it in her best interests.
So why didn’t they appoint the daughter in the first place, she would have been cheaper (as Panel Deputies charge) and it was OW’s choice in the Lasting Power of Attorney? Here is what the Judge said “ OW’s financial affairs are in disorder because of JW’s misconduct and they need to be put in order as soon as possible. I believe that a panel deputy would be better placed than OW’s daughter to achieve this, even though the appointment of her daughter would be a less restrictive option and more compatible with OW’s rights under Article 8 of the European Convention on Human Rights.”
Again, this is another tough decision by the Court of Protection, who have done their best to protect OW in a difficult situation.