APPLICATION IN RESPECT OF MRS HT
AW 58/04
Application in respect of Mrs H T
Introduction
In a recent case, (FB (AW 25/05) Glasgow Sheriff Court 13 May 2005), I referred with approval to certain observations made by Mr Adrian Ward in his standard textbook on the subject of Adult Incapacity (2003), and in particular, his observation, at para 10-34 that, with regard to the validity and criteria of the limits of Intervention Orders, where the granting of an Intervention Order would appear to accord with the general principles, "advisers are likely to be under a professional duty to test those limits" if necessary, their approach not being limited by what could or could not be done under the previous law.
Decision
In the present case, I have granted an application for an Intervention Order under section 53 of the Adults with Incapacity (Scotland) Act 2000, which authorises the solicitor of a living adult who has now lost capacity to regulate her own affairs, as defined in section 1(6) of the Act, to execute a codicil to her Will which recognises the current situation, potentially affects the succession to her estate by removing the possibility of her estate devolving in a way completely contrary to her stated intentions, but where she has not given instructions to take that step and is no longer capable of giving such instructions, but where I am satisfied that if she did have the capacity to give such instructions, that is precisely what she would do herself.
It is accordingly a step which is specifically authorised by the provisions of section 53(9) of the Act, emphasising once again the importance of that provision.
Circumstances
The circumstances which have given rise to this case are, I suspect, not unusual, and I recognise that the decision in this case may have important repercussions for practitioners.
The adult is 81 years old and, sadly, suffering from Alzheimer's Disease. She is widowed, but had two children, both sons. One of them is the applicant in this case, but the other has pre-deceased her, leaving his widow, the adult's daughter-in-law. In August 2001, the adult, who still then had full capacity, executed both a Will and a Power of Attorney. She was intending to regulate her affairs after she had died, but also to make provisions authorising the attorney to take certain steps on her behalf while she was still alive but in the event that she subsequently lost capacity, which has now, of course, happened. She was at the relevant time the owner of heritable property, being the house in which she then lived in Glasgow.
One of the effects of her present condition is that she has become no longer able to sustain independent living, and now resides in a unit, situated in Glasgow, specialising in sufferers from dementia. She is no longer capable of residing in her own home, and will not return to it. Her surviving son, the applicant, has his own home, and her daughter-in-law similarly lives independently, in England. The house will not be lived in by any family member, and is lying empty, which of course creates problems with regard to maintenance, security, and depreciation. It is a valuable asset.
The Adult's Previous Wishes
These are obvious from the terms of her Will, dated 22 August 2001. In that document, she directed that she was leaving her house (and no other specified estate) to her surviving son, the applicant. As she retained affection for her daughter-in-law, she did not wish to exclude her from benefiting from her estate and specifically included her as the person who should succeed to the residue of her estate. She was however quite specific in her instructions to her solicitor in that she wished her surviving son, and not her daughter-in-law, to be her principal beneficiary. Her estate is not believed to be substantial; the principal asset is the house, and the residue would have been expected to be a modest sum.
If the adult had died before the present situation had arisen, her surviving son, the applicant, would have inherited the house, completed title to it, and then subsequently disposed of it as he has no desire to live in it, retaining the net free proceeds thereof. Her daughter-in-law would have inherited a modest sum constituting the residue of her estate. However, the effect of the adult's intervening incapacity is that she no longer occupies the house. The Power of Attorney, dated 10 August 2001, which is in favour of the applicant and his wife, includes the power to sell her home, if they thought appropriate.
The present applicant has the power therefore to dispose of the heritable property of the adult now, rather than wait to do so after her death, but the problem is that she may survive for a number of years yet, obviously prolonging the problems relating to the property previously mentioned. If he exercises now the power which he has to sell it, the unfortunate effect of that is that because of the wording of the testamentary provision, he will have sold the actual asset which is left to him, and it appears that the net free proceeds will fall into the residue of her estate, which will have the catastrophic effect, for him, of preventing him from succeeding to anything from his mother's estate, while at the same time resulting in an unexpected, and unintended, windfall benefit of a substantial nature for the adult's daughter-in-law. It will also deprive him of the opportunity to use any of the proceeds of the sale for the benefit of the adult in the meantime.
The Resolution of the Problem
If this potential difficulty had arisen while the adult still had capacity to do something about it, it is clear that she could have instructed her solicitor to alter her will. For example, if she had suffered from a physical, rather than a mental, problem which necessitated her going to live in nursing accommodation, she could have sold the house herself and either given the net free proceeds to the applicant, or retained them for her own use while then instructing her solicitor to draw up a new will making it plain who was intended to succeed to her assets, which would then in that situation not contain heritable property.
She cannot do that now, and so the situation remains that, because of the way in which the will is presently worded, the applicant has either to allow the situation to persist, possibly for a number of years, in which he, out of his own resources, has to maintain and secure an asset which is deteriorating in value, or sell it now, as he has power to do as attorney, while knowing that in the event of her death, they will pass, not to him as she intended, but to his sister-in-law as a windfall benefit.
The answer therefore is that, provided the court can be given sufficient material to be satisfied as to the intention of the adult, authority should be given to execute a codicil to the will, making it plain that it is not just the house, but also the net free proceeds of the sale thereof, which are to be left to the applicant. That would allow the applicant to sell the house now, knowing that by doing so he is protecting, and not defeating, his own prospective inheritance, and at the same time is freeing up capital which can be used for the benefit of the adult in the meantime. By the same token, whatever would originally constitute the residue of her estate still does so, with the result that the residuary legatee is still left with the prospect of inheriting exactly what the adult intended that she should inherit.
In the present case, I am satisfied that not to authorise what is proposed would not only result in denial of justice to the applicant, but also in positive injustice. In former times, it may not have been possible to prevent such a situation arising, but not now, I believe, as a result of the provisions of the Act which apply in this case.
Of course, as I have previously said in the case of FB (supra), the court must have clear information on which it can act, and there must be full intimation of the proposed steps to anyone who might be affected. I have been given sufficient information about the stated intentions of the adult to satisfy me that, if it was within her power to remedy the problem which has arisen, she would do so, and do so in the way proposed. The intention to make this alteration has been properly intimated to the adult's daughter-in-law, who has also been written to and clearly advised to take independent legal advice on the nature and effect of what is proposed. She has not lodged any opposition to the Application, or registered any opposition with the agents who have intimated matters to her.
The Position of the Public Guardian
In accordance with the statute, this Application was intimated to the Office of the Public Guardian, who made an interesting observation, to which I must respond. The OPG pointed to the ruling provision of section 1(2) of the Act to the effect that no intervention in the affairs of an adult shall be authorised unless [the court] is satisfied that the intervention "will benefit the adult", and it was suggested that the proposed intervention here would not benefit the adult.
That seems to me, with respect, to place an unduly restrictive meaning on the word "benefit". While it may be that this intervention will not be to the direct financial benefit of the adult, (in the sense that the proceeds would not come to her directly; she has already authorised the selling of the house and potential investment of the proceeds in the Power of Attorney), they at least will be available to be used for her benefit in her remaining years, whereas at the moment there are, effectively, no such assets. But the Act does not specify that the only measure of "benefit" is direct financial benefit, and other interventions have been granted which are not of direct financial benefit to the adult.
I recognise that that the nature of the "benefit" here, for the adult, is to allow the regulation of her affairs in accordance with her previously stated wishes, and that I must then be satisfied that such a step would "benefit" the adult even though she may have lost the capacity to know, understand or appreciate what is being done. I am quite certain that there have been many interventions which I have authorised, which when looked at objectively, are clearly to the benefit of the adults involved, even though they may have lost the capacity to appreciate that.
For example, it sometimes happens that where an adult is incapable of ordering his or her own affairs, as defined in section 1(6), and is found living in circumstances of both squalor and potential danger to himself or herself and others, that person requires in all the circumstances to be removed from the existing environment and accommodated in a home or hospital. Taking the step of authorising the removal of an adult in that situation may therefore appear to the court to be manifestly to the benefit of that adult, even though the adult concerned may be unaware of what is happening, or why, and may well not subjectively appreciate any benefit, and may indeed even actively resist or oppose what is proposed. Nonetheless, the Court assesses that the proposed step, looked at objectively, will benefit the adult.
Effect of this Case
It may be that this case has no effect other than under reference to its own particular circumstances, and as an illustration of the kind of thing which may be authorised under the provisions of section 53 of the Act and the terms of an Intervention Order.
However, there may well be a point of more general importance which arises, and that is whether the existence of the kind of power which the court has authorised in this case imposes a duty on practitioners to advise on the terms of testamentary provisions made by their clients, in circumstances where they learn that a client has lost capacity to order his or her affairs further, and if necessary, to seek the permission of the court to make alterations to those provisions in accordance with known intentions, and in order to ensure that they are carried out as far as possible. It is obvious that there will be cases where there is opposition to such a proposed step, and dispute as to an adult's previously stated intentions. That has not happened here, and I am satisfied, for the reasons already stated, that the order sought should be granted in this case.