BN [2015] EWCOP 11

The initial application was by the Patient’s (‘P’) daughter (‘CN’) for the LPA to be revoked and that a panel deputy appointed as the attorneys were not suitable. P, SH and GN objected to this application stating that P had capacity to make decisions and therefore the court had no jurisdiction to consider the matter.

An order was made for there to be the filing of evidence and that the matter be referred back to a Judge.

Although the Judge was satisfied with the evidence of capacity filed by P, SH and GN, for the avoidance of doubt it commissioned a Court of Protection Special Visitor. The court concluded the application on paper and ordered that the Special Visitor’s report should be sent to CN and the respondent’s solicitors; dismissed the application as it was satisfied that it did not have jurisdiction; and directed that the respondents’ costs be assessed on a standard basis and paid by CN.  

CN made an application pursuant to rule 89 of the Court of Protection Rules 2007 requesting that the matter be reconsidered at a hearing.

The Facts
The Patient (“P”) was born in 1926 and is a 89 year old woman who has lived in Battersea all her life.

P’s husband died in 2004. 

P has two daughters SH born in 1953 who is 62 years and CN born in 1962 and is 53 years.  SH has no children but CN has two, GN born in 1981 and RN born in 1989.

On 26 March 2013 P executed a Lasting Power of Attorney (‘LPA’) for property and affairs, and health and welfare to SH and GN jointly and severally.  P had named her brother and cousin, but not CN or RN, as persons to be notified of an application to register the LPA, and therefore entitled to object to the registration.

The LPA was registered by the Office of Public Guardian (‘OPG’) on 4 August 2013.

Concerns
CN expressed concerns regarding the unsuitability of SH, and GN.  She stated that SH was not trustworthy, was financially abusing her mother-in-law and has a drink problem.  CN stated that GN had depleted all of P’s savings.

Objections
The Special Visitor reported on the initial application and concluded that whilst P did not have capacity to manage her property and affairs, and financial affairs generally, and that she did not have capacity to conduct and participate in proceedings without the need of a litigation friend, she did have capacity to object to CN’s application and did have capacity to revoke the LPA but that she does not wish to.

The Law
Rule 89 allows a reconsideration of a decision that has been made on paper; however this does not constitute an appeal (see Re S and S (Protected Persons) [2008] COPLR Con Vol 1074, paragraph 61).

If the court finds that the attorney has acted in a way that contravenes or would contravene their authority, or it is not, or would not be, in P’s best interest the court can direct that the instrument purporting to be a LPA is not to be registered, or if P lacks capacity to do so, can revoke the instrument or LPA (section 22(4)).

Decision
After a hearing, which deteriorated into a slanging match, the court dismissed the application, as P did not lack capacity to revoke the LPA, so the court was powerless to intervene.

The court ordered that CN pay the respondents’ costs to be assessed on a standard basis.

Discussion
The court noted that although it did not have jurisdiction to deal with the revocation as P had capacity, CN had not produced any evidence that the attorneys behaved in a way that contravened their authority or that it was not in P’s best interests.

Although the usual rule regarding costs in relation to property and affairs applications is that they are paid from P’s estate (Rule 156), in this case the court would have departed from that rule as CN’s conduct justified it. CN acted in bad faith and spite. The court found that it was unfair for P to pay costs she had incurred to resist "an unmeritorious application".

Read the full text of the judgment on Bailii