SHERIFFDOM OF GRAMPIAN, HIGHLAND and ISLANDS at ABERDEEN

 

Case No. AW55/12

DECISION of SHERIFF MARYSIA LEWIS Sheriff of Grampian, Highland and Islands at Aberdeen in The Minute for Directions under Section 3(3) of the Adults With Incapacity (Scotland) Act 2000 by A and B, Solicitors as Continuing Attorneys, Solicitors, Aberdeen First Applicants;   C, as Welfare Attorney, Aberdeen Second Applicant;   in respect of D, Aberdeen The Adult

 

Act: Sinclair

ABERDEEN, 11 February 2013

The Sheriff, having resumed consideration of the cause answers the questions in the Minute for Directions as follows: (a) yes; (b) yes; (c) yes; (d) yes; (e) yes and (f) yes; directs that the expenses of the Minute be expenses in the adult's estate as the same may be taxed.

 

 

 

 

NOTE

Introduction

[1] It seems to me that it would be inappropriate and unhelpful to identify the various parties involved in this particular case and accordingly I describe the participants by way of letters of the alphabet rather than their names.

 

[2] On 10 December 2008 D ("the Adult") appointed the first applicants as her Continuing Attorneys by virtue of a continuing Power of Attorney under section 15 of the Adults with Incapacity (Scotland) Act 2000 ("the Act") and appointed the second applicant as her Welfare Attorney under section 16 of the Act. These documents have been registered by the Public Guardian (Nos. 5/1/1 and 5/1/2 of process).

 

[2] The Adult was born on 5 March 1929. She is a widow. She has one son, E. She suffers from vascular dementia and has been certified as incapax (No. 5/1/3 of process). In recent years the Adult and her son lived together in a flat owned by the adult. On 6 February 2011 the Adult was admitted to hospital, due to concerns about her safety, health and well being. From there she was transferred to a Care Home on 1 July 2011, where she continues to reside.

 

[3] A number of escalating and increasingly hostile disputes have arisen between A, B & C and E regarding the care of the adult and the use of her heritable and moveable estate. The attorneys believe that their efforts to act in the best interests of the adult are being thwarted by E and that their roles, duties and functions are being undermined by him. On 4 September 2012, A, B and C presented an application to the court under section 3(3) of the Act seeking directions with regard to inter alia the exercise of their functions, the role of E, financial support for E, and the use of the Adult's assets.

 

[4] The application was opposed by E. He was initially represented by Mr BM, Solicitor. Mr BM withdrew from acting and accordingly the court scheduled a peremptory diet to take place on 14 November 2012. At the hearing on 14 November, I was not satisfied that proper intimation had been made and accordingly instructed fresh intimation. Sheriff Officers effected service on E personally. He informed them that he intended to oppose the application but then failed to attend the peremptory diet on 5 December. On that date, and in the absence of E, the court allowed amendment of the Minute for Directions, ordained the applicants to lodge up-to-date pleadings by 14 January 2013, allowed evidence by way of affidavits and assigned 21 January as a diet of proof. At the proof diet E did not appear. The applicants were represented by Mr Sinclair, solicitor. He tendered affidavits, four inventories of productions and a written submission, for which I am grateful.

 

Decision

[5] The court has broad discretionary and ancillary powers which are granted under various sections in the Act. The application before me has been brought under section 3(3)(a) of the Act. That section permits me to give such directions to any person exercising functions conferred by the Act as to (1) the exercise of those functions and (2) the taking of decisions or action in relation to the adult as appear to me to me appropriate. Those who may make such an application are any person, (including the adult), claiming an interest in the property, financial affairs or personal welfare of an adult.

 

[6] A and B are solicitors of some standing in the community. They are regularly appointed as continuing attorneys and as financial guardians in relation to adults with incapacity. They are familiar with the operation of the applicable legislation and the responsibilities, duties, powers and functions that come with being so appointed.

 

[7] C is a specialist psychiatrist. He is also a lifelong friend of the Adult and her family. His area of specialism is such that he is all too aware of the needs of and care required for adults with incapacity. He too is familiar with the operation of the applicable legislation and the responsibilities, duties, powers and functions that come with being appointed as a welfare attorney and as a welfare guardian.

 

[8] In 2008 the Adult consulted the first applicants and instructed them to prepare continuing and welfare powers of attorney. She specifically directed that A and B be appointed as her continuing attorneys and C as her welfare attorney. She did not wish E to be appointed in either capacity. At that time the adult and E lived together in her flat in Aberdeen.

 

[9] A, B and C are attorneys properly appointed under section 15 and section 16 of the Act respectively. They exercise functions under the Act and accordingly fall within the category of person who may make an application for directions under section 3(3).

 

[10] Making a direction is a form of intervention. There is ample authority to the effect that I must not authorise any form of intervention unless I am satisfied that it will benefit the Adult. Further, I am not allowed to intervene in the affairs of the Adult unless that benefit cannot reasonably be achieved without intervention. Any intervention which is made must be the least restrictive option in relation to the Adult's freedom, consistent with the purpose of the intervention. In determining whether and, if so, what intervention is to be made, account has to be taken of the past and present wishes of the Adult, the views of the nearest relative and the primary carer and the views of any other person appearing to me to have an interest in the welfare of the Adult or in the intervention.

 

[11] In reaching my decision I have taken into account the past views of the Adult as expressed to A. These views are that E ought not to have control of her finances but that some element of financial support ought to be provided for him by "keeping a roof over his heads" and seeing that he was "alright".

 

[12] I have also had regard to the Certificate of Incapacity (No. 5/1/3 of process) and the letters from Dr Athawes and Dr Arnold (Nos. 5/1/4 and 5/3/8 of process), all of which reveal that the health of the Adult is not improving - she has vascular dementia, is dependent on daily support from her current carers and she does not have capacity in terms of making decision about her finances or her own welfare.

 

[13] I have taken into account the evidence of A and C about the reasons for the admission of the Adult to hospital. This reveals a tragic and disturbing set of circumstances where due to her frailty the Adult was admitted to hospital under adult protection measures. Whilst there, the staff became concerned about the behaviour of E towards the Adult and the staff during and outwith visiting hours. An initial recommendation to return the Adult to her home subject to care at home was rejected by E as an unnecessary interference. At an Adult Protection meeting held on 14 April 2011 at the hospital, the Adult was deemed to meet the criteria for an adult at risk under the Adult Support and Protection (Scotland) Act 2007. The minute of this meeting (No. 5/1/11 of process) sets out information provided by Grampian Police and other agencies regarding the alarming behaviour of E towards the Adult. At a further meeting on 19 April 2011 (No. 5/1/12 of process), a decision was taken by the health care professionals and A, B and C to re-accommodate the Adult in a nursing home, suitable for her needs. The Adult, at both meetings, expressed a wish to return to her home and into the care of E. All other present believe that this was not, and still is not, in the best interests of the Adult and that to return her to the flat without external support would place her at serious and high risk of harm due to her incapacity and the presence of E.

 

[14] C concluded that the Adult had to be protected, despite her stated preference to return home, and in exercising his powers under the welfare power of attorney found a place for the adult at the Care Home where she now resides. At a review meeting held on 09 August 2011 (No. 5/3/1 of process) the Adult expressed contentment at living in the Care Home.

 

[15] The care home manager has given a clear report about the care package currently provided to the adult and the interaction amoungst A, B and C and all health care professionals engaged in the care of the Adult. In her opinion all of the needs of the Adult are met at the Care Home. Residence fees are paid monthly by the A and B from the Adult's funds. A personal allowance contract permits extra expenditure for small items for the Adult (Nos. 5/3/21 & 22 of process).

 

[16] A, C and the care home manager have each provided detailed information about the disturbing, disruptive and upsetting behaviour of E when he visited the Adult at the care home. They each speak of being personally subjected to verbal abuse, intimidation and acts of aggression, of being the subject of false allegations by E, of receiving abusive phone calls and texts from E at all hours of day and night, and the impact which all of this has had on them (Nos. 5/3/2 -6, 5/3/10, 5/3/12, 5/3/15-16). C was driven to seek an interim interdict against E (Nos. 5/3/19 & 20 of process). More importantly they each speak of the appalling fashion in which E has treated the Adult during visits, leaving the Adult visibly upset. Due to the impact of this behaviour on the Adult and on her staff, the Care Home Manager banned E from visiting or the telephoning the Care Home (Nos. 5/3/13-14 & 5/3/16 of process). This was not a decision taken lightly but only after consultation with the Head of Social Work of Aberdeen City Council, Grampian Police and the Grampian Support & Protection Team. Since this decision was implemented, the Care Home Manager has noticed an improvement in the demeanour of the Adult.

 

[17] E is the nearest relative. I do not have his express views as he chose to disengage from this process. I have read the emails and other items of correspondence passing between him, A, B and C and the Care Home Manager.

 

[18] Against the historic views of the Adult, I have to balance the needs of the Adult and the risks that face her in the disruption caused by E to the operation of the existing arrangements under the welfare power of attorney. In my opinion A, B and C are quite justified in seeking directions from the court on the first point. What they seek will benefit the adult. Accordingly, I answer their question in the affirmative for I am satisfied that they may act in the interests of the Adult under the terms of the continuing and welfare powers of attorney dated 10 December 2008 without the need to consult with E.

 

[19] Turning now to financial matters, the assets of the Adult comprise inter alia her flat, her pension, her car, the content of various bank accounts and investments. E continues to reside in the flat, rent free. All utility bills, council tax liabilities and associated repair and maintenance costs for the flat are met from the Adult's funds. He makes no contribution towards any of these outlays. A and B have permitted E to live in the flat temporarily, respecting the stated views of the Adult that she wished to keep a roof over his head. Due to her frailty and dementia the Adult is not capable of returning to live independently in the flat. She requires ongoing care from suitable qualified health care professionals. The Honda civic motor vehicle belongs to the Adult. She can no longer drive. E has the sole use of this vehicle. A and B consented to his use of the vehicle but for the purpose of visiting the Adult at the Care Home and taking her out on day trips. That has not occurred. E pays for fuel. All other costs associated with running the car are met out of the funds of the Adult.

 

[20] It is right and proper that the flat and the motor vehicle should be maintained to a reasonable standard to ensure that the values in same are preserved or enhanced. These assets may in due course require to be sold to fund the ongoing care of the Adult, in the event that her sources of income are depleted.

 

[21] E held a bank card for adult's the account numbered xxxxxxxx (sort code 12-34-56) with the Bank. A and B permitted this arrangement so that E could purchase small personal items and treats all for the benefit of the Adult without having to revert on each occasion to A and B for authority to do so. He was placed in a position of trust by them. A became concerned at the level of drawings on this account and wrote (No. 5/1/15 of process) to E seeking an explanation for the expenditure and receipts for same. By letter of 02 July 2012 (No. 5/1/8 of process) E advised A and B that he had bought a television and some accessories for the Adult amounting to £292. He also intimated that he had purchase a laptop for the use of the Adult, but intended keep it in the flat, only taking it to the Care Home as and when requested by the Adult to do so. The cost of this laptop was £1,019.85. The Adult has not made use of this item and does not have the capacity or ability to do so.

 

[22] The bank account records revealed that a direct debit payment was being made each month in respect of a Marks and Spencer credit card relative to account number 1111111111111111. The Adult did not hold such a credit card. Investigations by A and B reveal that the credit card is in the name of E (Nos. 5/4/1-7 of process). A and B did not authorise the setting up of this direct debit. A and B believe that the purchases made with this credit card are for the sole benefit of E. The entries are so many and so varied that they cannot, in my view be for the benefit of the Adult, else she would have been constantly out of the Care Home on visits to local hotels, supermarkets and garden centres. E has not been a welcome visitor at the Care Home so it can hardly be said that the purchases, whatever they were, have been passed to or used by the Adult.

 

[23] A and B believe that the excessive level of drawings on the Bank account were not for the benefit of the Adult but in the main were for the personal gain of E. I agree with that view. E has abused his position of trust. As a result of the actions of E, A and B have been unable to fulfil their duties and properly account for all of the withdrawals on the Bank account.

 

[24] Against the historic views of the Adult that she wished a roof to be kept over the head of E and some form of financial support given to him, I have to balance the change in the circumstances of the Adult, the needs of the Adult, the ongoing care costs and the duties on the part of A and B to safeguard her assets, account for those assets and when appropriate to realise those assets for the benefit of the Adult. In my opinion A and B are quite justified in seeking directions from the court on the second, third, fourth and fifth points. What they seek will benefit the Adult. Accordingly, I answer their questions in the affirmative. I am satisfied that A and B may terminate those direct debit payments to a Marks and Spencer premium Credit Card in the sole name of E which do not financially benefit the Adult; cancel access by E to the Adult's bank account numbered xxxxxxxx held with the Bank; pay a monthly allowance to E on behalf of the adult having regard to all relevant circumstances but provided said payments do not unreasonably diminish the funds available for the provision of sustenance, accommodation, clothing and related goods and services for the Adult; and continue to make payments of all taxes, bills, repair costs and insurances associated with the upkeep and running of the Adult's home and her Honda civic motor vehicle insofar as same may benefit the Adult' welfare or finances or both.

 

[25] The final matter for determination relates to a sum of £89,706.25. On or about 22 July 2006 this sum was paid into the Adult's bank account numbered yyyyyyyy (sort code 12-34-56) with the Bank on the instruction of E (No. 5/2/3 of process). He wrote to the first applicants seeking the return of that sum claiming that it related to the residue of the sale of his property. He has not produced any supporting material regarding the source of the funds, the reason for the deposit of those funds in that particular account in 2006. Without proper explanation or documentation, and in the absence of E I am not prepared to authorise any intromission with those funds. Accordingly I answer in the affirmative the final point raised by A and B and direct that they may retain the sum of £89,706.25 currently held at the credit of the Adult's bank account numbered yyyyyyyy sort code 12-34-56 held with the Bank pending determination of the ownership of this money.

 

[26] The expenses of this Minute fall to be paid out of the Adult's estate as the same may be taxed.