Arguing sons lose lasting power of attorney

Family Law|March 29th 2016

Arguments between two sons appointed as the personal deputies of their elderly mother meant they could no longer look out for their mother’s interests, a Judge has ruled.

In Re YW, the mother had been born in December 1935. She lives in Cornwall and worked as a primary school teacher before her retirement. She is the owner of a care home, originally established by her late husband.

She has three sons and one daughter, all in their 40s and 50s. Her oldest son lives in France and her daughter in Australia. Three years ago she granted lasting power of attorney for her property and financial affairs to her oldest and middle son, but revoked it just months later.

Then the following year, she again granted lasting power of attorney, again to her oldest son ‘Thomas’, with the addition this time of her youngest son ‘Kevin’, and a solicitor.

In special instructions, she stated that she did not wish to enter a nursing home, despite owning one, preferring instead to receive care in her personal home. The woman, referred to as ‘Yvonne’, also stated that any decision to sell her two properties could only be made with the agreement of at least two of her attorneys.

Just over a year later, however, the Office of the Public Guardian (OPG) intervened. The OPG regulates the role of personal attorneys. It applied to the courts for the revocation of the second LPA and an order formally inviting Yvonne’s daughter to take on the role of attorney instead, despite the fact that she lived in Australia.

An OPG investigations officer stated that the two sons had “longstanding difficulties” and were unable to agree on anything due to “continual resentment between them”. The solicitor’s contributions had reportedly been limited to acting as a go-between.

By that point, Yvonne had developed vascular dementia. When a Court of Protection official, called a a ‘general visitor’, visited her and asked about the LPA, the elderly lady recalled having established one but could not explain how she would change it or even who her attorneys were. The visitor came to the conclusion that Yvonne was no longer able to manage her own affairs – or even willing to do so.

Both sons objected to the application. The older man said he did not believe the appointment of the daughter was in their mother’s best interests. The younger man, meanwhile, argued that he should remain as deputy, working with ‘Sian’, the daughter, instead of his older brother, saying he could no longer work with either the latter or the solicitor.

The solicitor, meanwhile, argued that the older brother should stay on as sole deputy. He was “pragmatic”, she claimed, and had repeatedly shown a focus on his mother’s interests.

In the Court of Protection, Senior Judge Denzil Lush declared that:

“This LPA is not functioning satisfactorily because the animosity between the two remaining attorneys, Thomas and Kevin, has created an impasse, which is having an adverse effect on the management of YW’s property and financial affairs.”

However, the Judge felt that the Court visitor’s report was not sufficiently definitive on the issue of whether or not Yvonne could revoke her own LPA. He therefore ordered that another representative from the Court of Protection visit her at home – this time a ‘special’ rather than ‘general’ visitor. Pending their report, he appointed ‘Sian’, the daughter, as temporary attorney for her mother.

The judgement is available here.

Photo by Ayana T Miller via Flickr

Author: Stowe Family Law

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