Mental Capacity Case

The Public Guardian v AW and DH

Senior Judge Lush

In EU (Appointment of Deputy) The Public Guardian v AW and DH [2014] EWCOP 28, Senior Judge Lush revoked an LPA as the donee had used a substantial part of P's estate on improvements to the donee's house (where P lived) and payments for the donee's care of P without having sought the court's authority, without obtaining the agreement of the co-donee and without recording or protecting P's interest in the property. She had also severely restricted contact between P and the co-donee and her family. (The donees were sisters and P their mother).

Senior Judge Lush at paragraphs 30-32 held that the proper course would have been an application for authorisation under section 23(2)(b) MCA 2005.  At paragraph 32, he referred to the pre Act practice of approving care expenditure and capital expenditure on accommodation in personal injury cases, stating that significant expenditure on improvements to a house where P was living should be protected by a declaration of trust and an entry on the Land Register.