Analysis
MC was born on 8 October 1937. Her husband died in 2004. She had two children: a son (NC) and a daughter (SR) aged 54 and 49 respectively.
On 12 June 2009, MC executed a lasting power of attorney (LPA) for property and affairs appointing NC and SR jointly and severally as her attorneys. The LPA was registered on 24 September 2009.
In October 2011, MC made a will leaving 95% of her estate to SR and the remaining 5% to NC. In March 2013, SR placed MC’s house on the market. NC suspected that SR was mismanaging MC’s affairs and on 22 April 2013 entered a restriction on the proprietorship register requiring that no disposition of the registered estate be registered without his written consent. At the time of the application, MC’s house was on the market for £369,950.
The public guardian applied to the Court of Protection for an order (a) revoking and cancelling the registered LPA and (b) directing that Hampshire County Council be invited to make an application for appointment as deputy. Hampshire County Council confirmed that it was willing to act as deputy.
The public guardian contended that:
(a) SR had spent over £450,000 of MC’s money. This included sums spent on adaptions to her own property and going on holidays;
(b) There were unpaid care fees of £3,668;
(c) NC had not made a serious attempt to take on his role as attorney, other than entering the restriction on the proprietorship register;
(d) An on-going attorneyship would not work because of the fraught relationship between SR and NC;
(e) A Court of Protection General Visitor who visited MC on 4 June 2011 was of the view that MC suffered from dementia and lacked capacity to revoke the LPA herself.
NC admitted that he had not been involved in managing MC’s financial affairs and had made a serious error of judgment in allowing SR to add her name to MC’s bank accounts. NC proposed an order revoking the registered joint and several LPA and replacing it with an LPA appointing NC alone. NC said that he would start sorting out MC’s affairs once his daughter’s A Levels were out of the way, which were due to take place in the summer.
Held
1) Section 22 of the Mental Capacity Act 2005 describes the circumstances in which the Court of Protection may revoke an LPA. (Referred to Re J [2011] COPLR Con Vol 716)
2) The factor of magnetic importance is that, as far as it possibly can, the court should respect MC’s wishes as expressed in her LPA.
3) MC suffered from dementia and lacked capacity to revoke the LPA.
4) Unquestionably, SR behaved in a way that contravened her authority and was not in MC’s best interests.
5) Whilst NC lacked urgency in his proposal to deal with MC’s affairs, he had taken a major step towards safeguarding his mother’s assets by entering a restriction at the Land Registry. NC had not behaved, and did not propose to behave, in a way that contravened his authority or was not in MC’s best interests. There was no reason to revoke his appointment.
6) Regarding SR and NC’s relationship, there was no sense of the intense animosity that was evident in other cases (Re ED [2015] EWCOP 26 and Re EL [2015] EWCOP 30).
7) It would be in MC’s best interests to allow her LPA to remain in force with NC acting as the sole attorney.
JUDGMENT SENIOR JUDGE LUSH: [1] This is an application by the public guardian for an order revoking a lasting power of attorney (LPA) for property and affairs and directing him to cancel its registration. Because of the nature of the application, I am required by the practice guidance on Transparency in the Court of Protection: …Continue reading "Public Guardian v SR & NC [2015] EWCOP 32 (Fam)"