England and Wales Court of Protection Decisions

“Although [KC] has early signs of dementia, she is able to discuss her finances and any other health issues. She was able to give clear instruction regarding the LPA and who should be named. At the time of the assessment [KC] does have capacity to sign the LPA.”

(a)   Conduct these proceedings;

(b)   Make decisions about where she shall live;

(c)    Make decisions as to her care;

(d)   Make decisions about her contact with others;

(e)   Make a decisionto revoke the LPAs.

The relevant legal framework

(a)   Lasting powers of attorney

“A lasting power of attorney is a power of attorney under which the donor (“P”) confers on the donee (or donees) authority to make decisions about all or any of the following –

(a) P’s personal welfare or specified matters concerning P’s personal welfare, and

(b) P’s property and affairs or specified matters concerning P’s property and affairs, and which includes authority to make such decisions in circumstances where P no longer has capacity.

(a) Section 10 is complied with;

(b) An instrument conferring authority of the kind mentioned in subsection (1)

is made and registered in accordance with Schedule 1, and

(c) At the time when P executes the instrument, P has reached 18 and has

capacity to execute it.

does not comply with section 9, section 10 or schedule 1 of the MCA 2005,

confers no authority (see section 9(3) MCA 2005).

(a)   the provisions of this Act and, in particular, sections 1 (the principles) and

4 (best interests), and

(b)    any conditions or restrictions specified in this instrument.

(b) Appointment of donees

(a) an individual who has reached 18 (who is not a bankrupt or subject to a debt relief order: see section 10(2)), or

(b) if the power relates only to P's property and affairs, either such an individual or a trust corporation

(a) prevents the appointment taking effect in his case, but

(b) does not prevent a lasting power of attorney from being created in the case of the other or others.

(c)    Objection by donee or named person

(d)   The court’s powers

“this section and section 23 apply if -

(a)   the person (“P”) has executed or purported to execute an instrument with a view to creating a lasting power of attorney, or

(b)   an instrument has been registered as a lasting power of attorney conferred by P.”

(a)   That fraud or undue pressure was used to induce P -

(i)                 to execute an instrument for the purpose of creating a lasting power of attorney, or

(ii)               to create a lasting power of attorney, or

(b) That the donee (or, if more than one, any of them) of a lasting power of

Attorney -

(i)                 has behaved, or is behaving, in a way that contravenes his authority or is not in P’s best interests, or

(ii)               proposes to behave in a way that would contravene his authority or would not be in P’s best interests. [my emphasis]

“It appears to me that the general thrust of s.22(3)(b) is that the court can revoke an LPA if it is satisfied that the attorney cannot be trusted to act in the matter and for the purpose for which the LPA was conferred upon him/her… Further, if there is sufficient evidence that the attorney is behaving in contrary to P’s best interests, even in a different context, then it seems to me that that might quite reasonably provide a sufficient reason to revoke an LPA, perhaps because of conflict of interest.” [73]

In my judgment, the key to giving proper effect to the distinction between an attorney’s behaviour as attorney and his behaviour in any other capacity lies in considering the matter in stages. First, one must identify the allegedly offending behaviour or prospective behaviour. Second, one looks at all the circumstances and context and decides whether, taking everything into account, it really does amount to behaviour which is not in P’s best interests, or can fairly be characterised as such. Finally, one must decide whether, taking everything into account including the fact that it is behaviour in some other capacity, it also gives good reason to take the very serious step of revoking the LPA.” [75]

The position of the Official Solicitor

capacity at the time that they were executed. In the present case, where there is a significant and seemingly intractable dispute between KC’s adult daughters, it was submitted that the court’s powers in section 22(3)(b) MCA 2005 were engaged. The Official Solicitor (who was appointed to act for KC as to matters relating to her health and welfare only) submitted that the court should not register the health and welfare instrument and, as the issues raised are germane to both instruments, the court should also refuse registration of the property and affairs instrument.

(a)   KC’s wishes and feelings have been evidenced throughout these proceedings. The court was referred to the attendance note of KC’s solicitor Mr Maguire from his visit to KC on 17 July 2019. When asked about the term LPA and what she understands it to mean she said: ‘It means you want them to see to things for you”. When asked who she would wish to manage her affairs KC said: ‘well, they’d all have to do it. I’d have them all involved. You know there is four of them and you don’t want to leave any of them out. Lynda is the oldest.” When asked if she trusts her daughters she said: “they know what I want and they would do their best to give that to me. I am close with them.” When asked if she thought they were close with one another she said: “I don’t know how to say it. Sometimes they argue and sometimes they’re not close. They’re sisters and they keep things to themselves. I wish they were close. Some families are very close. If anything was happening to me though they would pull together.”

(b)    It is common ground between the parties that KC’s capacitous views in 2017 and her ascertainable wishes and feelings are that she would like all four of her daughters to have decision making authority in respect of her property and affairs and health and welfare. How that is to be achieved however is not common ground. LCR is clear in her view that she is not willing to be appointed as an attorney alongside her sisters, whereas AC, SC and CP all contend that the instruments should be registered;

(c)    An alternative to the appointment of all four daughters (given LCR’s objection) would be to appoint SC, AC and CP. However, this would directly contradict KC’s wishes and feelings and would serve to exclude LCR from decision making, which would be an unusual step for the court to take given KC’s clear wishes and feelings and the significant role that LCR plays in KC’s life. This option would be opposed by the Official Solicitor;

(d)   In the unlikely event that the court were to appoint LCR (along with KC’s other daughters), against her will, it is entirely unclear to the Official Solicitor how it is proposed that KC’s daughters would collaboratively make decisions on her behalf given the significant and seemingly entrenched conflict that exists. Whilst the Official Solicitor does not invite the court to scrutinise the criticisms that the daughters levy at one another, it is evident that they do not see eye to eye. Allegations of bullying and abuse have been made from both sides and despite these proceedings having been issued approximately three years ago, relations do not seem to have improved. The Official Solicitor submits that in light of the ongoing and long-standing conflict, the court cannot be satisfied that the attorneys (if appointed) would be able to act in KC’s best interests by working together and making decisions on a joint basis, despite all having KC’s best interests at heart;

(e)   Unfortunately, and in light of the above, the Official Solicitor does not consider that the court can properly accommodate KC’s wishes and feelings in the overall evaluation of her best interests. Given that the evidence suggests that KC’s daughters would be unable to act in the manner that the LPAs were intended (i.e to make joint decisions on KC’s behalf), the court can be satisfied that it is not in KC’s best interests for the LPAs to be registered. In light of the nature of the issues raised above, the court may consider that the same factors may impede the proper management of P’s property and affairs and conclude that the finance LPAs also should not be registered.

The position of LCR

“I do not believe it would be in my mother’s best interests for the LPAs to go ahead. My sisters and myself are unable to agree on anything and this I feel would be detrimental to my mother. It could delay important decisions for her health, welfare and/or finances and the unnecessary arguing would cause her distress if we were unable to prevent her from being exposed to it….. The level of hostility and objection towards me and everything I have done for our mother, with three against one, has become untenable. Therefore I feel that this is the most appropriate course of action to ensure minimal disruption to KC.”

“Whilst my mother has been living with me the past two years, and on advice from the bank, I am a joint account holder on my mother’s account. I have kept strict records of all ingoings and outgoings with receipts throughout this time and have always made it clear where money is kept. I have detailed and up to date accounts of all financial transactions within this period. I am aware that some monies have been spent by SC, AC and CP but am unaware if they have kept any records or receipts during the same time period. I feel that given the conflict between my sisters and me, unfortunately no formal agreement will be reached as we are polarised in our opinions and there would be ongoing disagreements about the management of our mother’s finances. I feel that it would be in our mother’s best interests to have an independent person appointed to control and manage her finances. This removes any concern from all parties about the control of finances, and allows a transparent process which also protects my mother from exposure to further conflict. This independent person can file the reports to the court and the four daughters at pre agreed regular intervals.”

“If the LPA’s are registered then responsibility for the care of KC must pass immediately to SC/AC/CP. The acrimonious and hostile relationship between the parties would mitigate against LCR providing care for KC.”

The position of SC, AC and CP

“LCR and her husband for more than two years have verbally abused, intimidated and bullied AC and myself. LCR has made wrongful accusations about deceit and family fraud in relation to myself, which led to the traumatic experience of being interviewed by the police, LCR’s husband physically assaulted me, there has been denial of contact of KC by LCR with AC and myself and anger management outbursts and inappropriate behaviour by LCR and her husband in front of our mother, (which AC and myself always chose to ignore while in the presence of KC) AC and myself have always been civil and shown no hostility towards LCR during these outbursts. The above incidents have been documented/recorded in emails.

In 2016 KC asked me to look after some of her money and I was asked by KC “don’t tell those two….as I don’t want them knowing all my business … ”. This was in reference to LCR and her husband. I respected my mother’s wishes and did not inform them. The police have confirmed there was no family fraud and there was no need for an investigation. Despite this LCR is still making slanderous and libelous comments regarding her personal thoughts on the situation, even informing the doctor who conducted the most recent capacity assessment in November 2019, which was completely irrelevant and untrue. The Doctor then in turn commented on it in front of our mother, which I feel is very unprofessional and inappropriate. LCR and her husband as executors of our father’s will have not carried out all his wishes since 2008. The family property was supposed to be transferred 50% into KC’s name and the remaining 50% to myself AC, CP and LCR. As of this date this has still not occurred.”

·          (from SC) their relationship with LCR was fractured

·         (from AC) LCR always wants to be in control, it is a lifetime thing and has always been the case and nothing will ever change

·         (from CP) she agreed that LCR always wanted to be in control and thought it would be very difficult working with LCR

The application of the evidence to the relevant legal principles to the present case

(a)   Whilst she was a capacitous donor, KC’s wish was for all four of her daughters to have decision making authority in respect of her property and affairs and health and welfare;

(b)   KC’s current wishes and feelings (as expressed to Mr Maguire) continue to reflect this view;

(c)    To appoint three of KC’s four daughters as attorneys would directly contradict KC’s wishes and feelings and would serve to exclude LCR (who plays a significant role in KC’s life) from decision making;

(d)   The appointment of three of KC’s four daughters as attorneys would not heal the rifts that exist between them on the one hand and LCR on the other. If anything, it would exacerbate and emphasise the difficult and fractious sibling relationship which cannot be and is not in KC’s best interests. The court is of the clear view that SC, AC and CP (if appointed) would not be able to act in KC’s best interests by working together with LCR and making decisions on a joint basis, despite all four daughters having KC’s best interests at heart. CP came very close to acknowledging this at the hearing and whilst all three proposed attorneys expressed the hope that they would work with LCR in KC’s best interest, there is ample evidence which demonstrates that such expressions are of hope over reality.     

The proposed order

Publication of this judgment

HHJ Sarah Richardson

Designated Civil Judge for the Humber Courts and nominated judge of the Court of Protection