Daughter fails to get sister’s power of attorney revoked

Family Law|March 3rd 2015

A woman has failed to get her sister’s power over their mother’s affairs revoked.

In BN, Re, an 89 year-old former cleaner had been suffering from “physical infirmity” and short-term memory problems. She granted lasting power of attorney  (LPA) to her eldest daughter, identified as ‘SH’ in the judgment, and to her granddaughter, identified as ‘GN’. This gave the two joint responsibility for decisions regarding her health, welfare, finances and property.

GN’s mother, ‘CN’, objected to the appointment and applied to the Court of Protection to have their LPA revoked. She claimed that her sister and daughter were “unsuitable to be the donor’s attorneys”.

Senior Judge Lush ordered a special visitor to talk to ‘BN’, the woman at the centre of the proceedings. During the visit, BN claimed that she had not spoken to CN, who is her youngest daughter, for a long time, and that she “always wants her own way”.

BN also alleged that her youngest daughter had previously attempted to strangle her and that one of the daughter’s previous partners was “frightened of her because he was attacked by her”.

The court visitor said that while BN was “entirely dependent” on her daughter and granddaughter to look after her finances and property, she was able to make decisions about LPA. She objected to CN’s application to revoke LPA and blamed it on “a poor relationship existing between them”.

Senior Judge Lush noted that “the hearing degenerated into a slanging match” between the parties, with each side trying to discredit the other with stories from their family history. He added that he did not need to convene a fact finding hearing as none of the stories had any relevance to the case.

The judge pointed out that, under the Mental Capacity Act 2005, the Court of Protection can only revoke a person’s LPA if the person they are given power over “lacks capacity” to do so. With that in mind, along with the visitor’s assessment of BN, he ruled that the Court was “powerless to intervene”.

He concluded that CN had “acted in bad faith” and “was motivated by spite”, so he ruled that it would be “unjust to expect BN to pay the legal costs she had to incur in order to resist such an unmeritorious application”.

To read the full judgment, click here.

Author: Stowe Family Law

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