Mental Capacity Case

Re WP and EP

Court of Protection (Senior Judge Lush)


In this case the Senior Judge had to consider whether to give retrospective approval to attorneys (two of Ps' children) under an EPA who had paid themselves (and their sister) £150 per month for care and travel expenses in helping to look after their parents.

The Senior Judge referred to his recent decision in Re HNL [2015] EWCOP 77, which dealt with the remuneration of deputies and it is clear that the same principles apply to attorneys.

If the EPA (or LPA) does not provide for remuneration of the attorney, then the attorney cannot be remunerated for performing the duties of an attorney as such unless the court makes an order (see paragraph 15). In this case the Senior Judge declined to make an order for remuneration for the performance of the duties of an attorney as such (and it is not clear that such was sought). This was on the basis that when the power was created the parties did so under the assumption that the basic duties of an attorney would be performed for no remuneration (see paragraph 39).

He did, however, approve the payments that had been made to the attorneys both in the past and for the future for care and travel (see paragraphs 40-47) on the basis that the care had been rendered and at commercial care would have been much dearer. He remarked in relation to travel, however, such claims should be made on the basis of a discounted AA rate rather than the full rate (45p per mile) as that applied to commercial organisations (see paragraph 31).

He made no ruling in relation to the payments to the sister which, presumably, would have to stop.


This case underlines the need for lay deputies or attorneys who want to pay themselves or members of their families a gratuitous care allowance, to apply for approval and the need for those drafting powers to consider carefully what should be said about such allowances or remuneration as, clearly, the attorneys, who had behaved impeccably, rather resented the court's and the OPG's input.