Opposing a lasting power of attorney in the Court of Protection

Scott Storey recently succeeded in opposing the registration of a lasting power of attorney in the Court of Protection (‘COP’).

Under subsections 22(3) and (4) of the Mental Capacity Act 2005, if the COP is satisfied that the donee of a lasting power of attorney has behaved, is behaving or proposes to behave in a way that contravenes their authority or is not in P’s best interests, the COP may:

  • Direct that an instrument purporting to create the lasting power of attorney is not to be registered; or
  • If P lacks capacity to do so, revoke the instrument or the lasting power of attorney.

The COP is able to take into account a number of factors in determining whether this test is met. In Re J [2011] COPLR Con Vol 716, HHJ Marshall QC noted at paragraph 77 that the COP can consider:

‘… any past behaviour or apparent prospective behaviour by the attorney, but, depending on the circumstances and gravity of any offending behaviour found, it can then take whatever steps it regards as appropriate in P’s best interests (this only arising if P lacks capacity), to deal with the situation, whether by revoking the power or by taking some other course’

In Re Harcourt [2013] COPLR 69, which concerned a property and affairs lasting power of attorney, Senior Judge Lush held at paragraph 60 that:

‘The factor of magnetic importance in determining what is in Mrs Harcourt’s best interests is that her property and financial affairs should be managed competently, honestly and for her benefit.’

Accordingly, Senior Judge Lush found that the donee was not acting in Mrs Harcourt’s best interests in circumstances where she had, amongst other things, failed to pay care fees on time, had not provided pocket money and had made frequent cash withdrawals.

Scott Storey acts for clients in both health and welfare and property and affairs matters in the Court of Protection. He has experience of cases ranging from deputyship applications to proceedings concerning the Deprivation of Liberty Safeguards.

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