Chandler v Lombardi
Summary
This case concerned a family dispute about the transfer of a property. Prior to her death, a property owned solely by Ms Chandler was transferred into the joint names of Ms Chandler and the defendant, Ms Lombardi (Ms Chandler's daughter) by Ms Lombardi acting in
her role as attorney for financial affairs. Ms Chandler's son and executor of her estate challenged the transfer. There had been a range of discussions between Ms Chandler and solicitors about appointing Ms Lombardi as her attorney under an LPA, amending her will to leave the property to Ms Lombardi rather than to all four of Ms Chandler's children, and transferring the property into the joint names of Ms Chandler and Ms Lombardi. LPAs for finances and health and welfare were registered, without Mr Chandler being consulted. Ms Chandler was subsequently diagnosed with dementia in addition to long-standing mental health problems.
Mr Chandler and Ms Lombardi were subsequently in dispute about Mrs Chandler's best interests and where she should reside and be cared for. The court held that Ms Lombardi had not had authority to transfer the property into joint names, as she had not sought permission from the Court of Protection to do so, despite it constituting a gift that fell outside s.12(2) MCA 2005. The next question therefore was whether the transfer was void, or voidable – a difference that mattered, since it affected whether the land register could be altered. The court held that the transfer was void and that the register should be rectified.
The court summarised the duties of an attorney in this situation and emphasised that a lack of knowledge of the need to seek the court's permission to make a gift of this nature was not an adequate defence:
The duties of an attorney under an LPA in respect of property and financial affairs are very clear. They are set out in the Mental Capacity Act 2005 and the Mental Capacity Act Code of Practice. They include the prohibition on gifts in s12 of the 2005 Act. When she signed the LPA in respect of property and financial affairs on 20th October 2016, Ms Lombardi signed an acknowledgement that stated inter alia "By signing this section I understand and confirm the following…I have a duty to act based on the principles of the Mental Capacity Act 2005 and have regard to the Mental Capacity Act Code of Practice". Whilst I accept that Ms Lombardi did not know about (and was not advised as to) the need to seek authorisation from the Court of Protection in respect of a gift such as this, that does not mean that she was acting with care. Indeed, quite the opposite: this was a gift very significantly in excess of that permitted by s12 of the 2005; it was made without consideration; if effective, it would have had the effect of substantially affecting the extent of Concetta's estate in the event of her death; and, in the light of the circumstances of the last two years of Concetta's life, it was a controversial and contentious step for Ms Lombardi to have taken (and, in my judgment, known by her to be such a step). For all of these reasons, Ms Lombardi should have taken steps to inform herself of the true position in law, whether by taking specific legal advice on the issue (which on the evidence she did not do), or otherwise. (paragraph 49)
