The Public Guardian v AW & Anor (Application to revoke Lasting Power of Attorney)
2014
COURT OF PROTECTION
United Kingdom
CORAM
- SENIOR JUDGE LUSH
Areas of Law
- Health Law
- Equity and Trusts
- Property and Real Estate Law
2014
COURT OF PROTECTION
United Kingdom
CORAM
AI Generated Summary
Senior Judge Lush of the Court of Protection considered an application by the Public Guardian to revoke and cancel the registration of OB’s Lasting Power of Attorney (LPA) for property and affairs. OB, a former nurse born in 1916, had appointed her daughters AW and DH jointly and severally. After OB’s house sale in 2010, AW used OB’s capital—about £183,219 per her schedule—to fund extensive adaptations to AW’s home where OB lived. DH complained in 2013, triggering an OPG investigation and a Visitor’s report finding OB lacked capacity to manage finances. AW contended the spending was with OB’s consent and in her best interests, and sought ratification if capacity was lacking. The judge held care was not in question but found AW breached fiduciary duties, failed to consult DH, and acted amid conflicts of interest without court authorisation or safeguards. Revocation of AW’s appointment followed; DH remains sole attorney and a panel deputy is anticipated.
JUDGMENT
Senior Judge Lush:
This is an application by the Public Guardian to revoke and cancel the registration of a Lasting Power of Attorney (‘LPA’).
The background
OB was born in 1916 and was formerly a nurse. She married in 1944. Her husband, who worked for London Transport, died in 1987.
She has two daughters, both of whom live in Surrey:
AW, who was born in 1950, and was also formerly a nurse. She is a divorcée and has no children; and
DH, who was born in 1954, and has two children.
Until February 2007 OB lived in her own home and since then she has resided with her daughter, AW.
On 15 September 2008 OB executed an LPA for property affairs, in which she appointed her two daughters jointly and severally to be her attorneys.
Nicholas Pinks of Elgee Pinks, Solicitors, Westerham, Kent, drew up the LPA, witnessed her signature and acted as the Part B certificate provider.
The LPA was registered by the Office of the Public Guardian (‘OPG’) on 4 March 2011.
In February 2013 DH contacted the OPG to express her concerns that long standing ‘pocket money’ payments to OB’s grandchildren had been stopped and that there had been excessive expenditure from OB’s accounts.
The Public Guardian opened an investigation on 7 March 2013 and commissioned a Court of Protection General Visitor to visit OB. The Visitor, Patti Simonson, saw OB at home on 29 March 2013, and concluded her report of the visit as follows:
“The donor appears to lack the capacity to manage her affairs. She appears unaware that she arranged an LPA. She believes that her lawyer is dealing with her financial affairs. She is pleased to be living with AW, one of her attorneys, and cared for by her. Although aware that she is contributing towards household expenses and stating that she was happy with some of her money being used for adaptation work she stated that her lawyer was the one to approve. She says that she cannot be bothered with money.”
The application
On 18 September 2013, Alan Eccles, the Public Guardian, applied to the court for the following orders:
That AW account fully for all expenditure from all accounts held on behalf of OB since registration of the LPA on 4 March 2011. AW is also requested to confirm whether expenditure on her property was paid for from OB’s funds and, if so, provide specification and costing of the work and how it was in the interests of OB.
That AW provide a copy of OB’s will, should she have one.
That the court considers whether the repayment pla