Challenge to Lasting Powers of Attorney

By Claire Martin, 23rd September 2021

I observed a remote hearing (COP 13339015) at Lincoln Family Court on 6th September 2021. District Judge McIlwaine was presiding. 

The case concerned a challenge to Lasting Powers of Attorney from the Office of the Public Guardian and was preparatory to a final 3-day hearing starting on 27th September 2021. 

The applicant is P’s daughter, who currently has Lasting Powers of Attorney for both health and welfare, and property and finances (i.e. her mother, when she had capacity to do so, chose the applicant to exercise decision-making powers on her behalf).

P is now 96 with a diagnosis of advanced dementia. She lives with her daughter and her daughter’s partner.

The application was originally made in 2018, for approval of payments to P’s daughter from P’s assets for care provided (historically and ongoing) and for renovations to P’s daughter’s home to extend the property to provide more space for P, and to facilitate visits more easily. Some of the money has already been withdrawn from P’s funds, including for a car, so one issue for the court is whether to approve these payments retrospectively. 

Alex Cisneros was counsel for the Office of the Public Guardian, which is one of nine respondents. Six of the other eight are (I believe) P’s other adult children, all as litigants in person. There appears to be concern within the family, and for the Office of the Public Guardian, about whether P’s daughter is managing the role of Lasting Power of Attorney appropriately. There is also disquiet about ease of contact with P for the wider family. Family members will each be preparing position statements for the final hearing. 

The Office of the Public Guardian has stated its position on P’s daughter’s application: it agrees that recompense for caring duties is appropriate, disputes retrospective funding for a car, and advocates for the appointment of a finance deputy. 

Issues to resolve at the final hearing are: 

(a) The amount of remuneration for gratuitous care provided, and to be provided, to P.

(b) Discharge or conduct of the recipient of a Lasting Power of Attorney.

(c) Appointment of a Professional Deputy for property or affairs.

(d) Indication of the level of contact with P by family members.

The remainder of this hearing was focused on how the parties would be attending the hearing (several of them live abroad). 

DJ McIlwaine sought views from all respondents, and from the applicant, regarding the presence of observers at the hearing. He asked each one in turn: “Do you object to the presence of a professional observer?” No one objected to observers attending.

The case will be listed for Monday 27th September – Wednesday 29th September 2021. 

Claire Martin is Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core group of the Open Justice Court of Protection Project and has published several blog posts for the Project about hearings she’s observed (e.g. here and here). She tweets @DocCMartin

Photo by Fakurian Design on Unsplash

3 thoughts on “Challenge to Lasting Powers of Attorney

  1. Helpful reflections by the author, and something I will ask to add to my LPoA, which is currently drawn up. We have had quite a journey with my mother in Netherlands, where recently a new law was enacted in relation to the matter of forced treatment or move to a care home. In short: had it not been for an element of coincidence and the persuasive arguments of her case manager, my mother would have been moved to a care home which was wholly unsuitable for her needs. This, because the process of forced move following a court decision doesn’t allow sufficient time & opportunity to wait until a place in a suitable care home becomes available, and the person will be placed in ‘anyv care home which has an available space….
    This blog has helped me to cover this aspect of the LPoA as best as possible, so I can hopefully avoid a possible similar situation here (UK)


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