Analysis
This was an application for permission to appeal against a decision of District Judge Mort authorising the revocation of an enduring power of attorney (EPA) in respect of the property and affairs of K.
K executed the EPA on 17 July 2007 appointing his two children (the attorneys) to be his attorneys with general authority to act on his behalf in relation to his property and affairs.
On 2 May 2013, the attorneys applied to the Office of the Public Guardian to register the EPA. This application was not opposed and the EPA was duly registered on 18 June 2013. However, by March 2014 the relationship between K and the attorneys had deteriorated and on 4 March 2014, K executed a deed in which he revoked the EPA. On 17 March 2014, K applied to the Court of Protection to confirm the revocation of the EPA. K’s capacity had been assessed by Dr Viale, who concluded that K (who suffered from mild vascular dementia) did have the necessary capacity to revoke an EPA.
The application to revoke the EPA was opposed by the attorneys. The district judge made a number of procedural orders, including directions that the attorneys file evidence, and on 20 February 2015 (the attorneys having failed to file any medical evidence as to K’s capacity), he ordered that the Public Guardian cancel registration of the enduring power of attorney. The attorneys applied for reconsideration of this order, but the district judge affirmed his earlier order. The attorney filed an appellant’s notice, seeking to appeal the district judge’s order. They appealed on the grounds that the medical evidence was inconsistent with their own understanding of K’s capacity.
Held:
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- 1) Permission to appeal was refused because the appeal had no real prospect of success. The district judge’s decision had been neither wrong nor unjust. Even if permission to appeal were granted and the appeal succeeded, the court would be obliged to revoke the EPA on the ground that K’s children are no longer suitable to act as his attorneys because the relationship between him and them has broken down irreparably.
- 2) K had provided incontrovertible evidence of his capacity to revoke the EPA. By contrast the attorneys had provided no medical evidence.
3) The conduct of the attorneys in this case justified a departure from the general rule in property and affairs cases. There should be no order as to costs in respect of the proceedings up to the District Judge’s final order. Thereafter, the costs of the applicants and the respondent should be assessed on the standard basis and paid by the attorneys. It was unreasonable for the attorneys to pursue the question of K’s capacity in light of the medical evidence.
SENIOR JUDGE LUSH [1] This is an application for permission to appeal a decision made by District Judge Mort. The background [2] These proceedings relate to Ken, who was born on 31 December 1928 and lives in Norfolk. He is a retired town and country planner. [3] He married his first wife, Margaret, in 1952 …Continue reading "Re KJP [2016] EWCOP 6"