Category:Other LPA cases

The old category structure used on this page is comprehensive as it contains every relevant case. The new database structure was introduced in 2019. It is more potentially useful than the old categorisation system: it includes all cases since January 2017, but only a minority of older cases: see Special:Drilldown/Cases. The pages below are initially ordered according to the dates on which they were added to the site (most recent first). The order can be changed by clicking on the symbol beside a column heading: click on the symbol beside "Page and summary" for alphabetical order; click beside "Categories" for the order in which the cases were reported. Click on the arrow symbol again to reverse the order. Click on a page name to view the relevant page. Asterisks mark those cases which have been added to the new database structure.

Case and summary Date added Categories
* Capacity The Local Authority v A [2019] EWCOP 68 — (1) A lacked capacity in relation to residence, care, contact, and medical treatment, and to execute an LPA. (2) The LPA was invalid for want of capacity. (3) The living will was similarly invalid as an ADRT, and invalid as an expression of her wishes and feelings as there was good reason to doubt its accuracy. (4) It was in A's best interests to: (a) receive treatment for epilepsy, primary ovarian failure and vitamin D deficiency; and (b) have care and support, and contact with her mother and grandparents, in accordance with the relevant plan and declarations. 2023‑03‑24 21:27:43 2019 cases, Cases, Judgment available on Bailii, Medical treatment cases, Other LPA cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2019/06/18 cases

* Solicitor fined over LPAs Varinder Ghaiwal [2022] MHLO 4 (SDT) — Varinder Ghaiwal was fined £6,000 (plus £11,000 costs) for, while acting as certificate provider in respect of a client's two LPAs, failing to verify instructions and failing to ensure that the client understood the purpose of the LPA and/or the scope of the authority they provided. The case arose after the police made a report to the SRA concerning an ongoing investigation into the elderly man's financial affairs. The SRA commissioned an expert report which concluded: "Mr Ghaiwal’s case is that he was a witness, however he was far, far more than that: a certificate provider. His failure to recognise this and therefore his failure to recognise the resulting duties and responsibilities meant that there was an egregious breach of his obligations to [the client]". 2022‑11‑22 14:45:28 2022 cases, Cases, Neutral citation unknown or not applicable, Other LPA cases, Pages using DynamicPageList3 parser function, 2022/01/10 cases

* LPA and contact Hertfordshire County Council (21 006 495) [2022] MHLO 2 (LGSCO) — Ombudsman's summary: "We have not found fault in the way the Council made its decisions regarding safeguarding enquiries, but there was a delay in its completion of the assessments and there was fault in the way the Council communicated with Dr C about the powers of the attorney and the requirement to apply to the Court of Protection. The Council has agreed to apologise and pay a financial remedy." 2022‑08‑26 09:07:04 2022 cases, Cases, LGO decisions, Neutral citation unknown or not applicable, Other LPA cases, Pages using DynamicPageList3 parser function, 2022/06/14 cases

* LPA wording - euthanasia and multiple attorneys Public Guardian v DA [2018] EWCOP 26 — "This judgment concerns two test cases brought by the Public Guardian, by applications made under s.23 and Schedule 1 paragraph 11 of the Mental Capacity Act 2005, regarding the validity of words in lasting powers of attorney ('LPAs'). The first concerns words relating to euthanasia or assisted suicide, whereas the second concerns words as to the appointment of multiple attorneys. Although the substance of the issues to which the words are directed is very different in the two cases, there is considerable overlap in the legal argument, the active parties were the same in the two sets of proceedings (the Public Guardian and the Official Solicitor) represented by the same counsel, and it is convenient to consider both cases in one judgment." 2018‑10‑15 20:03:20 2018 cases, 39 Essex Chambers summary, Cases, E89, ICLR summary, Judgment available on Bailii, Other LPA cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii, 2018/10/05 cases

XZ v The Public Guardian [2015] EWCOP 35, [2015] MHLO 98 — "This is an application regarding the effectiveness of some provisions contained in a Lasting Power of Attorney ('LPA') for property and financial affairs. It is not a type of application for which permission would normally be given for a judgment to be published. However, paragraph 16 of the Practice Guidance (Transparency in the Court Of Protection) [2014] EWHC B2 (COP), [2014] MHLO 5, says that "permission to publish a judgment should always be given whenever the judge concludes that publication would be in the public interest." I can't imagine that the general public would have the slightest interest in this judgment, but its publication may be of interest to professionals who specialise in this area of the law and draft LPAs on a regular basis, and also to people who are considering making an LPA themselves, and for this reason I shall permit its publication. ... XZ wants his attorneys to act only when he lacks capacity. In his LPA he has described in intricate detail the circumstances in which he can be identified as no longer having the capacity to make a relevant decision, whereupon his attorneys may make the decision on his behalf and in his best interests. ... XZ acknowledges that his LPA will be less effective because of these provisions but, nevertheless, he wishes them to remain as an integral part of the registered instrument for his own reassurance and peace of mind. Some people may think that this is unwise, but it is his will and preference and it should be treated with respect. The Public Guardian has no right to make a paternalistic judgment on his behalf and decide that it would be in his best interests for these provisions to be severed. ... The Public Guardian's function under paragraph 11 of Schedule 1 to the Act is limited to considering whether the conditions and restrictions are (a) ineffective as part of an LPA or (b) would prevent the instrument from operating as a valid LPA. ... I also order the Public Guardian to register the LPA." 2015‑11‑13 23:23:27 2015 cases, Brief summary, Judgment available on Bailii, Other LPA cases, Transcript

The Public Guardian v CT [2014] EWCOP 51, [2014] MHLO 128 — "This is the first occasion on which a respondent has sought an order for costs against the Public Guardian in respect of a safeguarding application regarding the respondent's conduct as the donee of a Lasting Power of Attorney." 2014‑12‑31 10:21:46 2014 cases, COP costs cases, Judgment available on Bailii, No summary, Other LPA cases, Transcript

Re DP: Public Guardian v John Marney [2014] EWCOP 7, [2014] MHLO 69 — "The Senior Judge concluded that JM was in breach of his fiduciary duties as an attorney and that he had "behaved in a way that has both contravened his authority and has not been in DP's best interests. ... At the end of the day the issue is really very simple. Why should JM be protected from the normal consequence of a judicial finding of misconduct, namely the identification of the wrongdoer in a published judgment? Nothing JM has said, or which could sensibly be put forward on his behalf, provides any reason why, looked at from his perspective, he should be spared the consequences of his misbehaviour. If publication of his identity and re-publication of the Senior Judge's findings, lowers JM in the estimation of right-thinking readers of the Daily Mail or other organs of the media, then so be it. He has only himself to blame. Why should JM be any more entitled to anonymity, just because the only judicial finding thus far has been made by the Court of Protection, than he would be if his self-same conduct was being considered in the Chancery Division or the Crown Court? ... In these circumstances, and with all respect to the Senior Judge, the balance comes down heavily and decisively in favour of the public being told who JM is; in favour of the Daily Mail and others being free to identify him as the person referred to by the Senior Judge in his judgment. JM is John Marney." 2014‑08‑01 11:13:26 2014 cases, Judgment available on Bailii, No summary, Other LPA cases, Transcript

Re RC (Deceased); SC v LB Hackney [2010] EWHC B29 (COP)LBH had successfully applied for a property and affairs LPA to be declared invalid and for residence orders; costs were awarded against the donee, SC; the costs order was appealed; subsequently RC died. (1) The court could hear the appeal against costs (but not other issues) after RC's death under its residual jurisdiction; this was so despite the only relevant rule being narrower in scope than to allow this. (2) The judge was wrong to hold that "the LPA was a personal welfare LPA, and therefore its general rule would fall within rule 157". (The general rules are rule 156, that P pay for property and affairs proceedings, and rule 157, that there be no order for costs in personal welfare proceedings.) (3) As a general rule the incidence of costs in cases where there is an LPA for health and welfare should not necessarily differ from the rule in property and affairs cases, subject to the provisions of rule 159 (departure from general rule if justified in circumstances). (4) Reservations were expressed about the manner in which the LPA was declared to be invalid; also, contrary to the judge's findings, SC did not provoke all the issues which she lost. (5) As well as being wrong, the costs decision was unjust: SC was not properly forewarned about the possibility of an adverse costs order; the judge did not consider SC's ability to pay; he did not fully consider the nature of the relationship between SC and RC and the fact SC acted in good faith; the judge was wrong to say this was an exceptional case, as although litigants like SC would try the patience of a saint they were not untypical in the Court of Protection. (6) Accordingly, the general rule (r157) should apply and the court should only depart from the general rule where the circumstances so justify, for instance clear bad faith, where there has been a careful costs warning and a consideration of ability to pay. (7) The order that SC pay LBH's costs was set aside and in its place no order for costs was made. 2010‑08‑10 23:36:50 2010 cases, COP costs cases, Detailed summary, Judgment available on Bailii, Other LPA cases, Pages using DynamicPageList3 parser function, Transcript, Judgment available on Bailii