RE ARL sub nom PUBLIC GUARDIAN v (1) ICL (2) JJT (3) LYN PARKIN (2015)

Keywords: LPA; Capacity; Best interests

In this case a mother had signed a lasting power of attorney for property and affairs appointing her son and daughter (jointly and severally) as her attorneys. After the donee lost capacity, the son misappropriated her funds and did not act in her best interests. The LPA was revoked and the daughter and a solicitor appointed as joint deputies.

The Public Guardian applied to revoke a registered LPA for property and affairs. The LPA had appointed the donee’s son and daughter jointly and severally as her attorneys, but in practice the daughter had left the management to the son. The son contended that his mother had been wrongfully denied NHS CHC and was disputing her eligibility. During the dispute he had refused to pay his mother’s nursing home care fees from her funds.

The son had used his mother’s funds to pay family expenses and failed to provide her with an adequate personal allowance. The son had sold his mother’s house, purchased a property in his own name and placed excess funds in his business account, rather than an account held on his mother’s behalf. He had provided incomplete financial records to the Public Guardian. The son was pursuing a claim against a local authority for the unlawful deprivation of the donee’s liberty and instructed many different solicitor firms or other providers of legal services at the donee’s expense. The son contended that he was fully prepared to pay back the entire amount once the sale of his property completed.

It was held that the son had both contravened his authority and failed to act in his mother’s best interests. The LPA was revoked and the daughter and a solicitor appointed as joint deputies.

It is of particular interest that failing to pay his mother’s nursing home care fees where CHC entitlement was disputed was found to be failing to act in the best interests of the donee. This is because the refusal to pay her care fees meant that there was a serious risk that she would be evicted and any action or inaction that might prejudice her placement there was not in her best interests. So the proper course of action would have been for the attorney (or deputy) to pay the fees during the course of a dispute regarding CHC entitlement and reclaim the fees later if CHC entitlement were ultimately established.

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