Granting a lasting power of attorney (LPA) is an invaluable means by which you can ensure that your affairs will be managed by someone you trust in the event that you lose the ability to look after yourself. As a Court of Protection case recently reviewed by Charlotte Ledson showed, however, it often makes good sense to appoint an independent professional, rather than a family member, to perform such a vitally important role.
The case concerned an elderly woman whose son had been convicted of defrauding her and other family members. He was sentenced to 45 months’ imprisonment and, following a subsequent confiscation hearing under the Proceeds of Crime Act 2002, he was ordered to repay over £460,000 to his victims.
Just a few days after that order was made, however, the woman signed LPAs in his favour, conferring on him complete authority over the management of her property, finances, health and welfare. The Public Guardian’s response to that turn of events was to launch proceedings seeking revocation of the LPAs on grounds that she lacked the mental capacity required to make them.
Ruling on the matter, the Court noted that she had been diagnosed with moderate dementia several years before the LPAs were executed and had since been the subject of a number of independent capacity assessments. Six weeks before she signed the LPAs, a social worker reported that she seemed uncertain about where she lived and was unable to recall the names of some of her children. She asked the social worker herself whether she was one of her daughters.
Upholding the Public Guardian’s application, the Court noted the woman’s belief that her son was innocent and her continued love and support for him. She had, however, conferred wide-ranging powers on someone who had in the past defrauded her. The Court ruled on the balance of probabilities that she did not have the mental capacity to grant the LPAs and that they were therefore invalid from the outset. A professional deputy was appointed to take over management of her property and affairs.
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