Re YW [2016] EWCOP 18

​This case concerns an application by the Public Guardian (‘PG’) to revoke a Lasting Power of Attorney (‘LPA’) for property and affairs. 

The Facts
P was born on 12th December 1935 and is now 80. P has 3 sons and a daughter; Thomas who is 53 and lives in France, Sian who is 52 and lives in Australia, Dominic who is 51 and lives in Hampshire, and Kevin who is 47 and lives in Devon.

In 2013 P executed LPAs for property and affairs, and Health and Welfare, appointing Thomas and Dominic. The LPAs were registered on 9th July 2013; however, P revoked them by deed of revocation on 21st October 2013.

On 5th June 2014 P executed a LPA for property and affairs appointing Thomas, Kevin and a solicitor named Helen French, jointly and severally. P gave guidance stating that she did not wish to go into a nursing home but if health and finance permitted her preference was a care home. Any decision to sell her properties (which included a care home generating an income of approximately £4,750 a month) could only be taken if there was an agreement with at least two attorneys.

The LPA contained a clause for Helen French to charge for her services. The LPA was registered on 5th September 2014.

P’s estate is worth approximately £1,200,000.

Application
The PG made an application on 12th December 2015 to revoke the LPA and invited the court to appoint Sian as a deputy to manage P’s property and affairs.
The concerns were:-

• The attorneys were not cooperating with each other;
• Long standing difficulties between Thomas and Kevin make it impossible to agree anything leading to unnecessary professional costs;
• Helen French did not take an active role and is acting as a go between;
• A deputy declaration (COP4) was completed by Sian on 21st September 2015.

General Visitor
The general visitor (‘GV’) felt that P would have the capacity to change her LPA with a large amount of support; however, the GV felt that P would not come up with the idea on her own. The GV did not feel P could nominate someone else but did say she didn’t want anyone else. The GV felt that P could instruct the attorney to provide an account but it is not something that P would think, or want, to do. The GV felt that P would be unable to be involved in some element of the decision making as regards to her finances. The GV concluded that P did not have capacity to manage her affairs.

Objections
Thomas objected. However, due to the difficulties with his siblings, he accepted that it would not be in P’s best interests for himself to be put forward. Thomas supported Sian being appointed deputy; however, he also wanted the court to restrict her from employing Kevin in P’s care home, or to be associated with the running of the care home.

Kevin wished a different order, namely that he and Sian be made attorneys. He did not wish to continue under the LPA due to the difficulties with Thomas and abuse, and Helen French’s lack of input therefore not making decisions in the best interests of P.

Helen French was happy to resign and felt that one attorney could deal with P’s estate; however, there would be difficulties in complying with the wishes of P that two attorneys needed to agree to sell the properties. She also stated that P’s business, the care home, was under the Care Quality Commissioner (‘CQC’) and the regulator already had concerns that one of the attorneys was in France, and would find it unpalatable to have an attorney who resided in Australia. Helen French suggested Thomas remains as attorney, and for she and Kevin to resign. Helen French disclaimed her appointment on 16th February 2016 stating that Thomas was the appropriate person to be the attorney.

PG’s response
Having read all the evidence and concerns regarding the family disharmony the PG had concerns regarding Sian being appointed, and also noted the issues with the CQC regarding geographic location. The PG wished the court to consider a panel deputy.

The Law
The court considered sections 22(4)(b) of the Mental Capacity Act 2005 (‘the Act’) to revoke and cancel the registration of the LPA and also section 16(5).

The court considered section 23(2)(a) appointing an interim deputy. 

The court considered section 4(6) as to P’s wishes and feelings.

The court considered Re EL [2015] EWCOP 30 and Re DGP [2015] EWCOP 58.

Decision
 All parties agreed that the LPA should be revoked and the issue was whether the court should appoint Sian or a panel deputy for P’s property and affairs. However, the court was concerned regarding the evidence as to P’s capacity to revoke the LPA and ordered a Special Visitor’s report on this.

The court appointed Sian as interim deputy.

Discussion
Although all the parties agreed that the LPA should be revoked the court reminded the parties of the test set out in section 22(4)(b) that the court can only revoke if P lacks the capacity to do so.  

It is very important to obtain the evidence as to the P’s capacity as this is the gateway to the Court of Protection’s jurisdiction.  

The court considered the case of A&B (Court of Protection: Delay and Costs) [2014] EWCOP 48 when making its order because even though the order was the least restrictive it did not think it was an ideal solution. In Re A&B Mr Justice Jackson stated:

"Another common driver of delay and expense is the search for the ideal solution, leading to decent but imperfect outcomes being rejected. People with mental capacity do not expect perfect solutions in life, and the requirement in Section 1(5) of the Mental Capacity Act 2005 that "An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests" calls for a sensible decision, not the pursuit of perfection."

​Read the full text of the judgment on Bailii