Analysis
SH, who was aged 93, lived with her granddaughter, FJ, in Walthamstow. She had three sons, two of whom, RL and KLC, also lived in London. In April 2002, RL paid the entire purchase price for his mother’s flat and, by a trust deed, SH acknowledged that he was the beneficial owner subject to her right to live there for as long as she wished on payment of all outgoings. Six years later, on 23 April 2008, SH made two lasting powers of attorney (LPAs), one for property and affairs and one for personal welfare, whereby she appointed RL to be her sole attorney. Subsequently, on 17 July 2008, SH made a will leaving her entire estate to RL and appointing him to be her sole executor. SH was diagnosed as having dementia in August 2008 and the LPAs were registered with the Office of the Public Guardian (OPG) in September 2008 and January 2009.
KLC made several complaints to the OPG about the conduct of RL, as a result of which the Public Guardian applied to the court on 9 July 2015 for an order revoking the LPAs and appointing Waltham Forest Council as deputy to manage SH’s property and affairs. In the event, Waltham Forest Council withdrew its agreement to act as deputy and, while it was suggested that a professional deputy be selected, FJ with the support of KLC put herself forward for appointment. They had other concerns besides the LPAs as they requested the court to review the trust deed and the will. No evidence was filed by RL although he did telephone the OPG to say that he was content to be removed as attorney. Evidence was also filed by an investigations officer of the OPG to the effect that the court had no power on its own motion to review the trust deed or the will and, while a deputy might investigate and bring proceedings, this would be a costly process and might not be proportionate to the size of the donor’s estate. In the circumstances, the OPG had no objection to FJ being appointed as deputy to manage SH’s property and affairs as well as personal welfare, if the court considered it necessary.
Held (revoking the LPAs)
The court was satisfied that SH lacked the capacity to revoke the LPAs and that her attorney, RL, had behaved in a way that contravened his authority or was not in her best interests, thereby enabling the court to revoke the LPAs. As to the appointment of a deputy, because SH’s assets were of minimal value, it would not be in her best interests to appoint a professional deputy (who would be expected to be remunerated for his or her services). Instead, FJ would be appointed to act as her deputy for property and affairs, given that she had been looking after SH since 2008. There was, however, no need to appoint her as deputy for personal welfare. Routine decisions concerning SH’s day-to-day care could be made by FJ as her carer. Any decisions about her medical treatment should be made by the healthcare professionals, no doubt in consultation with FJ and the three sons of SH.
SENIOR JUDGE LUSH: [1] This is an application by the Public Guardian for the revocation of two lasting powers of attorney; a lasting power of attorney (LPA) for property and affairs and an LPA for personal welfare. The background [2] Sybil is 93. She was born in Barbados on 30 May 1922 and came to …Continue reading "Re SH [2016] EWCOP 2"