Complex web of interests after ailing football pundit’s enduring power of attorney decision
Alongside the news earlier this month that former footballer and television presenter Jimmy Hill is suffering from Alzheimer’s disease came the accompanying stories that his family are in dispute over his care.
Hill’s children are concerned about the management of his affairs now that he has lost capacity to deal with them himself. Hill made an enduring power of attorney (EPA) in 2005, appointing his wife, Bryony, and a solicitor as his attorneys. Attorneys under EPAs have no authority to make decisions concerning the donor’s care (a gap that was addressed by the creation of Lasting Powers of Attorney for Health and Welfare in 2007).
The result in Hill’s case is that whilst his attorneys lack the authority to make care decisions for him, the medical authorities will usually look to his next of kin (in this case his wife Bryony) to make those decisions. Hill’s children now vocally express their disappointment as to their lack of influence.
Attorneys under EPAs have a relatively limited duty to consult with family members when making decisions (see Re Allen (2009)), although best practice usually dictates that attorneys should consult where possible so as to satisfy their general obligation to act in the donor’s best interests in accordance with the provisions of the Mental Capacity Act 2005.
There is a duty to consult with anyone “interested in the donor’s welfare” where it is practicable and appropriate to do so under the act, but an attorney need not follow what those family members might say. Under EPAs, attorneys’ obligations are arguably more limited than those imposed under the act and accompanying code of practice. Senior Judge Lush said in Re Allen that the obligation on attorneys to have regard to the code of practice under the act was not intended to have retrospective effect.
All attorneys are subject to the overriding jurisdictions of the Court of Protection and Office of the Public Guardian and have duties to fulfil concerning the proper management of the donor’s assets. In disputes such as that in which Hill’s family now find themselves, it is a common feature that “opposing” parties will allege potential breaches of attorney duties or obligations in circumstances where it is not always clear that those duties exist.
Historically the Court of Protection has attached significant importance to provisions made by a donor whilst they had capacity. In this case, Hill appointed his wife and solicitor as his attorneys. This choice is given paramount importance when the court considers any possible challenge or change to those arrangements. A donor may have good reasons for not wanting children to have control over assets: the appointment of a solicitor, may be motivated by the wish to have a professional exercising some control in the event capacity is subsequently lost. Perhaps a donor may foresee that any joint appointment of their spouse and children would lead to conflict and would want to avoid such disputes.
Hill’s children do have the right to apply to the Court of Protection to have a deputy appointed in relation to health and welfare and therefore are not totally without the ability to have a say in their father’s car.
Charles Russell associate James Lister assisted with this article