The Public Guardian v PM &SH
Summary
In this case the Senior Judge was dealing with an application for the partial revocation of a property and affairs LPA and the revocation of a welfare LPA.
P's daughter was the welfare attorney and was also, jointly and severally with her brother, the property and affairs attorney.
The application centred on the daughter's behaviour. As regards the property and affair LPA, the Senior Judge reminded himself of the ruling in Re F [2004] 3 AER 277 where Patten J had said;
"It seems to me that to remove an attorney because of hostility from a sibling or other relative, in the absence of any effective challenge to his competence or integrity, should require clear evidence either that the continuing hostility will impede the proper administration of the estate or will cause significant distress to the donor which would be avoided by the appointment of a receiver."
In the end, the Senior Judge concluded that there was such hostility and the proper administration of the estate had been impeded so the LPA for property and affairs was partially revoked and P's son became the sole attorney.
As regards the welfare LPA, the Senior Judge held that rather different considerations applied (see paragraphs 47 and 48). In particular, he noted, a welfare attorney can only take decisions which P lacks capacity to take and there is protection for P where, as here, the attorney had suffered a temporary lapse in her ability to perform her duties, in that s.5 MCA has the effect that the vast majority of welfare decisions are taken in collaboration, informally, with a range of agencies. In those circumstances there is a safety net for P.
In the end, therefore, the Senior Judge refused to discharge the welfare LPA.
Comment
This decision – one of the last that Senior Judge Lush will give prior to his retirement (see further the appreciation by Penny Letts elsewhere in this Newsletter) provides a useful reminder of the clear conceptual, and in turn practical, differences between the two forms of powers of attorney that can be granted under the MCA.
