SAD & anr v SED
 [2018] WTLR 1439

WTLR Issue: Winter 2018 #170

(1) SAD


(2) ACD

V

SED

Analysis

The respondent, who had a history of mental health problems, made a lasting power of attorney (‘LPA’) for property and financial affairs on 1 April 2014 appointing as attorneys her mother and her two daughters, the latter of whom were the applicants. It was then registered by the Office of the Public Guardian. On 25 September 2015 the respondent executed a deed, which had been prepared by a solicitor whom she had not previously instructed, revoking the LPA. Its registration was subsequently cancelled by the Office of the Public Guardian. On 4 December 2015 the applicants made an application objecting to the revocation and cancellation of the LPA on the basis that the respondent lacked capacity to make the relevant decision. They were also concerned to prevent the Respondent’s sale of her property in Wiltshire (‘property’). It was unfortunate that the issues which had arisen gave rise to a conflict between mother and daughters, but which all of them wanted to resolve without resulting irreparable damage. The issues were: (i) whether they respondent lacked capacity to revoke the LPA; (ii) whether the LPA should be reinstated; (iii) whether HJTC Ltd should be appointed to act as the respondent’s property and affairs deputy; and (iv) whether the deputy should be authorised to sell the property.

Held (allowing the application but revoking the power)

According to a report by a consultant neuropsychiatrist, the respondent had a bipolar affective disorder which followed a fluctuating course over the last fifteen years and, whilst capable of understanding those matters that may require a decision and capable of retaining information for long enough to communicate a decision, she was not capable of weighing matters in the balance on account of her mental disorder. The respondent did not accept that she had the disorder but acknowledged that she needed assistance and preferred a professional relationship with the proposed deputy which would leave her familial relationships free from conflict about financial matters. Capacity to make a decision to revoke a power depended on an understanding by the donor of who the attorneys were, what authority they had, why it was necessary or expedient to revoke the power, the foreseeable consequences of revoking the power and an ability to weigh and take into consideration the reasons for the original decision to appoint the attorneys. On balance, the capacity assessment of the consultant neuropsychiatrist was to be preferred over that of the solicitor and, accordingly, the respondent lacked capacity to revoke the LPA. However, if the applicants were to continue to have responsibility for making financial decisions on behalf of the respondent, it would not be possible to repair their relationships and, on balance, it would not be in the respondent’s best interests to reinstate the LPA. Accordingly, the LPA should be revoked and HJTC Ltd appointed as the respondent’s property and affairs deputy. The deputy should have authority to sell the property because the decision was for the deputy to take in the respondent’s best interests taking all current circumstances into account, including consulting with those who were closest to the respondent.

JUDGMENT DISTRICT JUDGE GLENTWORTH: [1] This application raises issues in relation to a lasting power of attorney for property and affairs (an LPA) under which SAD and ACD (the applicants) were appointed attorneys by their mother, SED (the respondent). The applicants were represented by Francesca Gardner of counsel and the respondent by David Rees, also …
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Counsel Details

Francesca Gardner (Kings Chambers, 5 Park Square, Leeds, LS1 2NE, Tel 0345 034 3444, e-mail clerks@kingschambers.com) instructed by Clarion (Elizabeth House, 13–19 Queen Street, Leeds LS1 2TW, tel 0113 246 0622) for the applicants.

David Rees (5 Stone Buildings, Lincoln’s Inn, London WC2A 3XT, tel 020 7242 6201, e-mail clerks@5sblaw.com) instructed by Hugh Jones (2, The Malt House, Deva City Office Park, Trinity Way, Manchester M3 7BD, tel 0161 871 3680, e-mail info@hughjonessolicitors.co.uk) for the respondent.

Legislation Referenced

  • Mental Capacity Act 2005, ss 1-4, 16, 22, sch 3