Re LMS [2020] WTLR 1345

Winter 2020 #181

The applicant was the mother and an attorney of LMS, a 21 year old who had been assessed on 11 July 2020 as lacking capacity to make financial decisions. LMS’s grandfather had died, having made a will under which 30% of his residuary estate was held in trust for LMS contingently on attaining the age of 25. LMS was in receipt of a means-tested benefit, Employment and Support Allowance, and her placement in a specialist residential college was funded by the local authority, the residential component of which was also means tested. Her right to receive those means-tested benefits would ceas...

Re JBN [2019] EWCOP 62

Summer 2020 #179

The Public Guardian applied to revoke a lasting power of attorney (LPA) for property and affairs appointing DN as attorney for his father, JN. The application was brought on the basis that the Public Guardian was concerned that DN had not acted in JN’s best interests by selling JN’s residence and transferring most of the proceeds to himself (DN), and by mixing their finances by operating a joint account.

The Public Guardian was particularly concerned that JN’s care costs were in jeopardy and therefore invited the court, when considering the application on paper, to suspend DN’s at...

Bagguley v E [2019] EWCOP 49

Spring 2020 #178

The claimant was the Property and Affairs Deputy for the defendant (E). The claimant applied for authority for buccal cell samples to be taken from E for the purposes of DNA testing to establish whether E was the father of three adults (D, P, and A).

E was expected to die within the year though his health was not currently critical ([28]). The procedure for collecting the sample was probably no more intrusive than assisting E to clean his teeth.

Earlier DNA tests were undertaken on E’s instructions in 1991. They indicated a 99.9% probability of paternity, provided no close ...

PBM v TGT [2019] EWCOP 6

Autumn 2019 #176

PBM sought to marry his fiancée and take charge of his property and affairs. TGT, his property and affairs deputy, obtained a caveat against the marriage under the Marriage Act 1949 and sought directions from the Court. It was eventually agreed that PBM had capacity to marry, to make a will and to enter into a prenuptial agreement but that he lacked capacity to manage his property and affairs. However, it was not agreed whether PBM should be told of the extent of his assets, or whether he had capacity to decide that question.

An expert psychiatrist gave evidence that PBM did have...

LCN v KF [2019] EWCOP 1

Summer 2019 #175

CJF was a thirteen year old boy who suffered very serious neurological damage at birth. He was initially cared for by his mother, KJF, but she had also suffered complications as a result of CJF’s birth, so he ended up being cared for by a foster parent, LR under a Special Guardianship order. LR passed away in 2013, and the Special Guardianship order was transferred to LR’s daughter, EH, and her husband, AH. CJF’s father, BJF, had denied his paternity, was not named on his birth certificate, and had played no role in CJF’s life.

Before she died, LR brought a claim against the NHS T...

FL v MJL [2019] EWCOP 31

Winter 2019 #177

The Applicant, who was the sole deputy for property and affairs of his brother MJL, made an application for

(i) ratification of small gifts previously made on behalf of MJL and

(ii) authority to make prospective substantial gifts on behalf of MJL.

Both he and three siblings each provided witness statements in support. MJL, who was in his sixties, was unmarried and had no children. He had suffered a cardiac arrest ten years previously and was in a persistent vegetative state. His estate was in excess of £17m (the larger proportion of which was comprised in an inves...

PBC v JMA [2018] EWCOP 19

Winter 2019 #177

This was an application by the applicant, PBC, the son and attorney under a lasting power of attorney of the patient, JMA, to authorise various gifts exceeding £7m in value. The purpose of the gifts was to achieve a reduction in inheritance tax (IHT) liability. JMA ‘s total assets were estimated to be worth around £18,650,000, held in the form of investments and five paintings.

JMA was 72 years old, suffered from early onset dementia, and required full time care. She was unable to converse and did not recognise PBC or her care staff. It was agreed (and found) that she did not have...

In the matter of Various Lasting Powers of Attorney [2019] EWCOP 40

Winter 2019 #177

In 15 separate applications under s23(1) Mental Capacity Act 2005 (MCA), the Public Guardian (PG) asked the court to determine the effect of language used in lasting powers of attorney which he was asked to register. Some were withdrawn, leaving 11. The common theme was that each instrument expressed an intention that the attorney use the donor ‘s assets to benefit someone other than the donor.

PS: Under the heading ‘Preferences ‘, the donor entered the words ‘The needs of [LS] before anyone else ‘. Under the heading ...

The Public Guardian vs IT & Ors [2015] EWCOP 10

Spring 2019 #174

PMB [2014] EWCOP 42

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