Personal attorney released from prison

powers of attorney

The Court of Protection has ordered the release of a personal attorney from prison.

Devon County Council v Kirk concerned her appeal against a six month sentence for contempt of court.

She had been appointed joint personal attorney for ‘MM’, an elderly gentleman in his 80s who had developed dementia, taking on responsibility for both his health and welfare and his property and affairs, under the provisions of the Mental Capacity Act 2005.

MM was Portuguese by birth and still had relatives on the island of Madeira.

Subsequently, the attorney removed MM from his home in Devon and took him to live with her in a different county. This was a controversial decision and Devon County Council began proceedings in the Court of Protection, to assess whether the move was really in MM’s best interests. Should he remain with the attorney or be taken into a care home back in Devon where he had lived for decades and had “a large circle of friends”.? An independent social workers’ assessment recommended that MM be returned to Devon.

Sitting in the Court of Protection , Lord Justice McFarlane explained what happened next:

“Within days [the attorney] removed MM from the jurisdiction of England and Wales, without any notice to the professionals in the case, and travelled with him to Portugal. MM has remained in Portugal since that time. Shortly after arrival he took up residence in a care home where he remains. Mrs Kirk subsequently returned to her home in England without him.”

Subsequently there have been a succession of Court of Protection rulings aimed at bringing MM back to England to settle in a Devon care home. But the home in Portugal where he currently lives has insisted on specific authorisation from the attorney before they will release him and as a result the Court of Protection has issued orders requiring the attorney to “take such steps as are necessary to achieve MM’s return to this jurisdiction and, so far as recent orders are concerned, specifically directing her to sign the appropriate paperwork authorising the care home in Portugal to release him.”

The most recent order was issued on June 20 this year. The attorney did not sign the documentation cited and so Devon County Council began proceedings for contempt of court.

In August the attorney was found guilty and received her sentence. Despite this she continued to refuse to sign and was subsequently arrested and sent to prison.

Lord Justice McFarlane said he was worried by the sentence.

“I am bound to record that I find the circumstances of this case to be of significant concern. The Court of Protection has sentenced a 71-year-old lady to prison in circumstances where the lady concerned is said to be of previous good character and where, as the judge acknowledged, she has been acting on the basis of deeply held, sincere beliefs as to the best interests of MM for whose welfare she is… genuinely concerned.”

He added:

“The ultimate purpose of her incarceration is to achieve the removal of an 81-year-old gentleman, who has suffered from dementia for a number of years, from a care home in one country to a care home in Devon which is near his longstanding home and within a community where he is well known. Those stark facts, to my mind, plainly raise the question of whether the Court of Protection was justified, on the basis that it was in MM’s best interests to do so, in making an order which placed Mrs Kirk in jeopardy of a prison sentence unless she complied with it.”

In addition, said Lord Justice McFarlane, the attorney had already lodged an appeal against the June order requiring her to provide authorisation at the time the committal was issued.

Given the woman’s “genuine and sincere objections” to the council’s insistence that returning MM to the UK was in his best interests, and that she had applied for permission to appeal the basis for that determination, explained His Lordship, “it was simply premature for the judge to press on with the committal application.”

Read the ruling here.

Photo of Madeira by Bjørn Christian Tørrissen via Wikipedia under a Creative Commons licence

Stowe Family Law Web Team

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