Henry, a man of 92 with mild dementia, came to stay in Brighton with his platonic friend of 60 years, Maggie (his late wife’s best friend from childhood). He stayed with her about eight times each year. On this occasion she took him to see her long-standing Probate solicitor, because Henry said a neighbour in London had pushed him in to making a new Will and a Lasting Power of Attorney in which he put everything under this neighbour’s control. Henry made a further new Will and Lasting Power of Attorney with the Brighton solicitor, appointing Maggie to act.
The London neighbour reported Henry as “missing” from his home, although she had been told where he was. Brighton police and Social Services became involved and – perhaps because they were acting on an urgent basis and upon unreliable information from the London neighbour – mistook Henry’s birthmark on his face for a sign of injury caused by Maggie’s inability to care for him, although Henry told them it was a birthmark. They told Henry that he could not stay on holiday with his friend and persuaded him to accept their help. They took him to a dementia unit and started safeguarding.
When Cate Searle, an independent Brighton solicitor – who had not written his Will or Lasting Power of Attorney – was asked to go and see Henry about what he wanted, she was asked to leave the unit because there was a safeguarding investigation underway. Cate eventually got to see Henry, and spent time arguing with Social Services that he had capacity; had chosen Maggie as his Attorney because he trusted her above all else; and that they should allow him to go back to stay with her. Henry was confused but consistent on the point that he did not want to go back to London and that Maggie was the right person to help him with everything.
Both Social Services departments presented a number of assessments that Henry lacked capacity and his friend Maggie was “up to no good” (although she was a woman of independent wealth). Henry was moved to a better care home by Maggie, with the consent of Social Services who signed the contract. They continued the safeguarding investigation and appeared to take at face value the evidence of the neighbour and her partner who had known Henry for only two years, and got themselves in to his Will unlawfully, above the evidence of Maggie, his friend of 60 years. In addition they contacted Henry’s late wife’s nieces– who had had no relationship with him for years – and invited them to oppose Maggie’s involvement in Henry’s affairs. This was despite Henry telling Social Services that he wanted nothing to do with the nieces.
Cate insisted that Social Services obtain an independent mental capacity assessment – which they eventually did. The independent doctor found that Henry had mental capacity throughout the period in dispute and that he had made a fully informed choice to put everything in the hands of his oldest remaining friend, Maggie, by making a Lasting Power of Attorney. The doctor found no abuse or exploitation, simply honest trust founded on long-standing friendship.
Henry decided to stay in the second care home and was delighted that Maggie was able to help him with all of his decision-making, big and small. Maggie felt disappointed that Social Services didn’t apologise for the allegations against her character or motivation but she was pleased to be able to resume her supportive friendship with Henry and ensure that he got the best quality care.
This is a case that could have gone to the Court of Protection for a decision, but did not for a number of reasons – the most important being that Henry had the mental capacity to decide how to deal with his property and affairs. Court intervention – on an urgent basis – may be required when a person’s liberty is deprived but it can be difficult to start proceedings in the absence of a reliable mental capacity assessment.
Martin Searle Solicitors is the trading name of ms solicitors ltd, which is authorised and regulated by the Solicitors Regulation Authority, and is registered in England under company number 05067303.© 2022