“Future Conflict” Risk Persuades Court of Protection To Appoint Panel Deputy

In LR v SC, AEC, CP, KC [2020] EWCOP 62, the Court of Protection broke new ground by appointing a panel deputy to act for KC, a protected party, because there was no prospect of the four attorneys KC had nominated being able to work together.

LR v SC, AEC, CP, KC [2020] EWCOP 62

Case summary

KC had been diagnosed with mixed Alzhiemer’s and dementia. She had named her four daughters (LCR, SC, AEC and CP) as beneficiaries in her Will, and following her diagnosis she executed two Powers of Attorney appointing all four of them as joint attorneys for property and affairs (enabling them to manage her finances), and for health and welfare decisions. She had instructed solicitors to prepare the Power of Attorney for her and they obtained a capacity report from a mental health nurse who concluded that KC had the capacity to give instructions to her solicitors to prepare the Powers of Attorney.

However, her fourth daughter, LCR, was not convinced that her mother had capacity and did not execute the Powers of Attorney. When her three sisters applied to register the Powers of Attorney, she objected, applying to the Court of Protection to stop the registration. LCR did not get on at all well with her sisters and she was convinced that if all four of them were appointed as attorneys, she would be excluded from the decision-making processes.

The Court of Protection is called on to make determinations whenever attorneys cannot agree, but it is important to remember that the Court does have a wide discretion, and will not necessarily make the orders that the parties want. In resolving the issues in dispute, it is sometimes necessary to unpick the allegations the parties have made in support of their case. The Court has the power to make findings of fact against the parties, and, if needs be, a case can be listed for a contested hearing to enable this to be done.

KC was represented by the Official Solicitor, as is often the case in Court of Protection disputes. The Official Solicitor is not necessarily instructed to give voice to the protected party, but to look at the situation from the protected party’s vantage point and provide the Court with that perspective. The Official Solicitor recommended that, despite it not being KC’s clearly expressed wish, the Powers of Attorney should not be registered as there was a high probability that the four daughters would not be able to work together on KC’s behalf.

When the matter came to hearing, whilst the Judge did not make any adverse findings of fact, she accepted that all four daughters loved their mother and were genuinely trying to look after her best interests. However, the Court decided that the Powers of Attorney should not be registered. This decision was somewhat controversial because, applying the best interests criteria (in section 4 of the Mental Capacity Act 2005), the Court will place emphasis on a protected party’s historic wishes and feelings and KC wanted her daughters all to work together on her behalf.

However, the Court concluded that this was not in KC’s best interests. It was clear when the daughters gave evidence that there was no prospect of them working together, and this would be to KC’s detriment. The Court did not place blame at any of the parties’ feet but decided it would be in KC’s best interests to appoint a panel deputy. This case is perhaps the first example of the Court making a decision based on the impact of likely future conduct from a protected party’s relatives.

KC Court Of Protection

How can Nelsons help?

Lewis Hastie is a Legal Director in our Dispute Resolution team, specialising in inheritance and Court of Protection disputes.

If you have any questions regarding the subjects discussed in this article, please contact Lewis or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.