YW, Re [2016] EWCOP 18 (24 March 2016)

Posted on Thursday, May 19th, 2016

Julie FitzpatrickThis case concerned an application by the Public Guardian to revoke a Lasting Power of Attorney for property and financial affairs.

The proceedings related to Yvonne, who was born on 12 December 1935. She owned a care home, which her husband set up in 1984. He died in 1995. She had three sons and a daughter, namely Thomas, Sian, Dominic and Kevin.

In 2013 Yvonne executed LPAs for property and financial affairs and for health and welfare, in which she appointed Thomas and Dominic as her attorneys. Yvonne subsequently revoked the LPAs.

On 5 June 2014 she executed another LPA for property and financial affairs, in which she appointed Thomas, Kevin and Helen French, a solicitor, jointly and severally to be the attorneys. However, on 12 December 2015, the Public Guardian applied to the court for: (1) an order under section 22(4)(b) of the Mental Capacity Act 2005 revoking the LPA; and (2) an order inviting Sian to make an application for appointment as deputy to manage Yvonne’s property and financial affairs. Concerns had been raised that the attorneys were not cooperating with one another – longstanding issues between Thomas and Kevin made it impossible for them to agree on anything and continual resentment between them had led to significant and unnecessary professional costs. Furthermore, Helen French did not take an active role and tended to act as a professional ‘go between’.

There was consensus between the parties that the LPA should be revoked, and Senior Judge Lush’s decision was narrowed down to a choice between appointing either Sian or a panel deputy as Yvonne’s deputy for property and affairs. Senior Judge Lush suspended the attorneys’ authority to act under the LPA, pending receipt of an assessment by a Court of Protection Special Visitor regarding Yvonne’s capacity to revoke the LPA and regarding her wishes and feelings concerning the proposed appointment of Sian as deputy. Senior Judge Lush preferred the appointment of Sian, rather than a panel deputy, for various reasons including (a) the fact that Sian was willing and able to act and there had been no effective challenge to her competence and integrity; (b) although she lived in Australia, the problem was not insuperable; (c) Sian would be acting gratuitously, whereas a panel deputy would charge for his or her services; and (d) there were many mundane, everyday matters in the administration of Yvonne’s affairs that did not require professional input.

The full judgment can be read here

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