Re KC; LCR v SC, AEC, CP

In this case, the applicant, one of P's daughters sought an order that powers of attorney for property and affairs and welfare be not registered. The powers were in joint and several in favour of the applicant and her 3 sisters. The applicant had refused to execute the powers as she was at loggerheads with her sisters and did not believe that the 4 of them could make decisions in their mother's best interests. The matter was complicated by the fact that P, who had Alzheimer's lived with the applicant.

The powers were executed in August 2017 and the first reason why the applicant objected to their registration was that P had lacked capacity to execute the powers.  However, the applicant then conceded that P had capacity in August 2017 so this ground fell away.  It was, however, common ground that she had lost capacity to make a number of decisions, including to revoke the purported powers. HHJ Richardson therefore court went on to consider the alternative reason for refusing to register, namely pursuant to s.22(3)(b)(ii) MCA 2005 that the donee (or any of them if more than one) proposes to behave in a way that would contravene his authority or would not be in P's best interests. At paragraph 28 the court considered what HHJ Marshall held:

In Re J [2011] COPLR Con Vol 716 Her Honour Judge Hazel Marshall QC considered the statutory construction of s.22 and in particular the approach that should be taken if an attorney or proposed attorney is considered to be unsuitable:

"It appears to me that the general thrust of s.22(3)(b) is that the court can revoke an LPA if it is satisfied that the attorney cannot be trusted to act in the matter and for the purpose for which the LPA was conferred upon him/her… Further, if there is sufficient evidence that the attorney is behaving in contrary to P's best interests, even in a different context, then it seems to me that that might quite reasonably provide a sufficient reason to revoke an LPA, perhaps because of conflict of interest." [73]

In my judgment, the key to giving proper effect to the distinction between an attorney's behaviour as attorney and his behaviour in any other capacity lies in considering the matter in stages. First, one must identify the allegedly offending behaviour or prospective behaviour. Second, one looks at all the circumstances and context and decides whether, taking everything into account, it really does amount to behaviour which is not in P's best interests, or can fairly be characterised as such. Finally, one must decide whether, taking everything into account including the fact that it is behaviour in some other capacity, it also gives good reason to take the very serious step of revoking the LPA." [75]

Taking that staged approach, the judge found that there was no prospect of the sisters being able to work together for their mother's benefit. She expressly refused to apportion blame for that state of affairs.

She also noted that, as the applicant did not execute the powers, P's wishes to have all 4 daughters as attorneys could not be achieved.

She held that, in those circumstances of irreconcilable conflict, it was in P's best interests that the powers were not registered and so ordered. She appointed a panel deputy for property and affairs only.

Comment

This is an unusual case of a pre-emptive refusal to register a power on the grounds of irreconcilable differences. The notes to the Court of Protection Practice were cited at paragraph 29 as follows:

The notes to the Court of Protection Practice state that no case has yet been brought before the courts on the ground of the future behaviour of a donee or donees and state that "an application to revoke a lasting power of attorney on such grounds requires a high standard of proof to show why the behaviour of the attorney is not in the donor's best interests." Insofar as this comment requires the court to undertake a proper analysis of the available evidence, looking at factors such as the context of any evidence, the overall evidential picture and the inherent probabilities (or improbabilities) of the evidence as it relates to the past behaviour of the donee and, applying this analysis, to what it establishes about the likely future behaviour of the donee(s)and whether this is likely to be in P's best interests, I agree. Insofar as this comment suggests that there is somehow a higher standard of proof, or that the seriousness of the matters or the seriousness of the consequences should make any difference to the standard of proof, I respectfully disagree. In the present case, as with any case before this civil court, the standard of proof is to a balance of probabilities.