It is obviously right that individuals who exercise lasting powers of attorney (LPAs) on behalf of sick or elderly relatives are subject to close public scrutiny. However, in a High Court case, a son succeeded in dispelling suspicions that he might not have acted in the best interests of his 78-year-old father.
The Office of the Public Guardian (OPG) began an investigation after the son used an LPA conferred on him by his father to sell the latter's home for £975,000. Concerns were raised that most of the sale proceeds had been paid to the son and that he had, by operating a joint bank account, inappropriately mixed his finances with those of his father.
The son, however, said that he had sold the house on his father's instructions and that his father had the mental capacity to make decisions for himself at the relevant time. Other resources available to the pensioner meant that future payment of his care costs had not been placed in jeopardy and he had expressed personal dislike of his son being investigated.
After the OPG made an emergency application, the LPA was suspended by a district judge and an interim deputy was appointed to take over management of the father's affairs. However, following a further hearing at which the son's arguments were fully aired, the Court discharged the interim deputy and restored the son to his role running his father's finances under the LPA.
In subsequently ruling on where the substantial legal costs of the case should fall, the Court found that the action taken against the son by the OPG went beyond what was necessary or reasonable. Although the evidence that the father lacked capacity to instruct the sale of his home was always weak, the OPG had made grave allegations of wrongdoing against the son which did not reflect reality.
The large number of court applications in respect of the conduct of attorneys issued by the OPG annually usually reveals that close scrutiny has been given to each individual case. However, the Court found that, on this occasion, a standard approach had been taken, resulting in unnecessarily acrimonious litigation and upset to both father and son.
The usual order in such a case would be that the costs of the litigation should be paid from the father's funds. However, the Court found that a departure from that course was, in the circumstances, justified. Together with its own legal costs, the OPG was ordered to pay half of the costs incurred by the son in defending the case.
For advice on all litigation matters relating to powers of attorney, contact Sydney Mitchell on 0808 166 8827.
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