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Court helps family resolve issues over lasting power of attorney

Posted: 15th October 2015   In: Wills, Trusts and Probate

The Court of Protection has helped a family resolve difficult issues over lasting powers of attorney for an elderly woman suffering from Alzheimer’s disease.

The woman’s husband, who also suffered from dementia, had applied for an order appointing him and her two cousins as deputies so they could manage her affairs for her.

The woman’s eldest son objected to the application and proposed that he should be appointed as joint deputy with one of the cousins. The younger son submitted a witness statement recommending that his father's request be granted. However, he said he would not object if the court decided not to appoint his father due to his deteriorating health.

The court heard evidence that the two cousins were very close to the family, and one of them had worked in accounts, suggesting a good aptitude for managing finances. They had both already been appointed as the executors of the wills of both the woman and her husband. They were also the husband's deputies under a lasting power of attorney.

The woman’s assets consisted of a half-share of the family home, substantial investments, and a half-share of a joint loan which she and her husband had made to their eldest son for him to set up a business. That business had subsequently gone into liquidation.

The court held that the husband should not be appointed due to his own deteriorating health and because he would probably prefer to be relieved of the responsibility and worry. However, he would be consulted about issues relating to his wife’s financial and welfare issues.

It would also be inappropriate to appoint the eldest son because he was his parents' principal debtor and it was possible that they would need to realise the funds he owed them in order to provide for their care in later life. The conflict between his interest and theirs was too great to enable him to look after their interests properly.

Moreover, the rest of the family regarded him as totally unsuitable to be her deputy because he lacked competence and integrity, and because he had a poor track record of managing his company's financial affairs

The court therefore decided to appoint the two cousins because the woman had appointed them to be the executors of her will, which suggested that she trusted them to deal with her financial affairs after her death, and that she thought they would be business-like and capable of coping with the paperwork.

The husband clearly trusted them too, as he had appointed them to be his attorneys and had proposed them as deputies for his wife.

In addition, the younger son considered that their appointment would be in his mother's best interests, and had provided a particularly impressive witness statement, which gave an articulate and balanced account of the family's history and current circumstances. In contrast, the eldest son's witness statements had been rambling, hysterical and vindictive.

Please contact Josie Birnie if you would like more information about the issues raised in this article or any aspect of lasting powers of attorney and the Court of Protection.