Various Lasting Powers of Attorney
| Jurisdiction | England & Wales |
| Judge | Hilder |
| Judgment Date | 20 September 2019 |
| Neutral Citation | [2019] EWCOP 40 |
| Court | Court of Protection |
| Docket Number | Case No: Various |
| Date | 20 September 2019 |
[2019] EWCOP 40
Her Honour Judge Hilder
Case No: Various
In the Matter of
Mr. Cisneros, instructed by and for the Public Guardian
Hearings: 11 th December 2018 & 4 th February 2019
The hearings were conducted in public subject to a transparency order made on 10 th October 2018.
The judgment was handed down to the parties by e-mail on 20 th September 2019. It consists of 34 pages and an annex, and has been signed and dated by the judge.
The numbers in square brackets and bold typeface refer to pages of the hearing bundle.
These Proceedings
The Office of the Public Guardian receives applications to register Lasting Powers of Attorney. By fifteen COP1 applications variously dated 5 th or 6 th July 2018 the Public Guardian applied for the Court to determine the meaning and effect of words set out in certain instruments which he has been asked to register. The applications are brought expressly on the basis that:
“The Public Guardian has not had sight of any evidence to rebut the presumption of capacity in these cases and has not made any investigation as to the capacity of the fifteen donors… The court is asked to make decisions on the validity of the instruments as opposed to exercising its decision-making powers on behalf of the donors.”
By order made on 10 th October 2018 District Judge Marin linked these applications together and listed them for a directions hearing before me on 11 th December 2018. On that occasion, the Public Guardian was represented by Mr. Cisneros and a family member of one of the donors (GRH 13264918) attended in person. Directions were given for the filing of evidence by any of the donors or attorneys if they so wished, and the Official Solicitor was invited to act as advocate to the court. The matter was listed for further hearing in February 2019.
The Official Solicitor declined the Court's invitation to act for the reason that his costs could not be met. At the hearing on 4 th February 2019, only the Public Guardian attended or was represented.
Some of the applications have been withdrawn. Eleven separate matters remain before the Court. The common theme across these applications is the expression by the donor of an intention that the appointed attorney use the donor's funds to benefit someone other than the donor:
a. All eleven instruments express such intention as an ‘instruction’ and one also expresses it as a ‘preference;’
b. The persons to receive benefit are variously specified as daughters (4), sons (2), children (3), mother (1) and wife (1) of the donor, and a named person with no further explanation of the relationship given (1);
c. In at least one of the cases (MS 132652070), the person to receive benefit is also the appointed attorney.
Through his Counsel, Mr. Cisneros, the Public Guardian has filed position statements dated 29 th November 2018 and 30 th January 2019, and further written submissions dated 7 th February 2019. None of the donors or attorneys has filed any written submissions.
The individual cases
The cases before the court are as follows:
a. PS 1317340T: The Donor was born on 10 th March 1944 and is therefore now 75. On 14 th February 2017 she executed an instrument [ B1] in which she appointed her son SS to be her sole attorney, with authority to act only when she lacks mental capacity. At section 7 of the instrument under the heading ‘Preferences’ the donor entered the words “The needs of [LS] before anyone else.’ Under the heading ‘Instructions’, she entered the words “The attorney [SS] must ensure that the needs of my daughter [LS] are taken care of…”
b. AIQ 13262561: The Donor was born on 24 th March 1931 and is therefore now 88. On 27 th October 2016 she executed an instrument [ B21] in which she appointed JQ to be her sole attorney, with authority to act as soon as the instrument is registered. At section 7 of the instrument under the heading ‘Instructions’, she entered the words “Must make sure that you continue to look after my son [M] in the same way that I do.”
c. MS 13265207: The Donor was born on 11 th December 1942 and is therefore now 76. On 23 rd March 2017 she executed an instrument [ B39] in which she appointed DW to be her sole attorney with authority to act as soon as the instrument was registered, and RT as her replacement attorney. At section 7 of the instrument under the heading ‘Instructions’ she entered the words “…[DW] lives with me in my own home. She must continue to be allowed to live there in the event that I have gone into fulltime care.”
d. LT 13262578: The Donor was born on 13 th June 1972 and is therefore now 47. On 11 th March 2018 he executed an instrument [ B57] in which he appointed DFP to be his sole attorney, with authority to act as soon as the instrument was registered. At section 7 of the instrument under the heading ‘Instructions’, he entered the words “My attorney is to make sure my daughter [OAT] is given whatever financial help she needs from my estate…”
e. DJS 13265242: The Donor was born on 18 th January 1940 and is therefore now 79. On 2 nd February 2017 he executed an instrument [ B116] in which he appointed WJS, KC and HG to be his attorneys, with authority to act jointly and severally as soon as the instrument was registered. At section 7 of the instrument under the heading ‘Instructions’, he entered the words “If I am currently making payments towards either of my daughters' living expenses then my Attorneys must carry on with those payments which are currently made out of my excess income. If there is insufficient excess income these payments should come from capital.”
By COP5 Acknowledgment dated 20 th August 2018 DJS has indicated consent to the application and given further clarification of his intentions in the following terms: “I have been making, continue to make and intend that I should continue to make financial provisions for my daughters by way of gifts from my excess income on a monthly basis….. I intend that as long as I have capacity to do so I will continue making these gifts and would wish them to continue from my resources after any incapacity until my death. I accept that if there has been a break in those payments prior to my incapacity that they cannot be resumed on my behalf.”
f. WJS 13265265: The Donor was born on 21 st January 1942 and is therefore now 47. She is married to DJS. On 2 nd February 2017 she too executed an instrument [ B136] in which she appointed her spouse, KC and HG to be her attorneys, with authority to act jointly and severally as soon as the instrument was registered. At section 7 of the instrument under the heading ‘Instructions’, she entered the same words: “If am currently making payments towards either of my daughters' living expenses then my Attorneys must carry on with those payments which are currently made out of my excess income. If there is insufficient excess income these payments should come from capital.”
She too has filed a COP5 Acknowledgment dated 20 th August 2018, giving the same clarification of her intentions as her husband.
g. DG 13264890: The Donor was born on 23rd March 1977 and is therefore now 42. On 14 th April 2017 he executed an instrument [ B156] in which he appointed KG to be his sole attorney with authority to act as soon as the instrument is registered, and CG as his replacement attorney. At section 7 of the instrument under the heading ‘Instructions’, he entered the words “All property must be transferred into my wife's name. Attorney must ensure my children are provided for.”
h. CO 13262549: The Donor was born on 6 th September 1967 and is therefore now 51. On 9 th January 2018 she executed an instrument [ B176] in which she appointed JS and HS to be her joint attorneys, with authority to act only when she lacks capacity. At section 7 of the instrument under the heading ‘Instructions’, she entered the words “My attorneys must ensure that money put aside in my accounts for university is used for any remaining university or equivalent for [H] and [T] or if they choose not to study to help towards any employment/housing set up costs. Any remaining money after end of uni course can be used for whatever needs that person has.”
i. EF 13264878: The Donor was born on 24 th August 1979 and is therefore now 39. On 21st August 2017 she executed an instrument [ B220] in which she appointed HF to be her sole attorney with authority to act as soon as the instrument is registered, and AF as her replacement attorney. At section 7 of the instrument under the heading ‘Instructions’, she entered the words “If my mother is still alive my attorneys must use any of my funds that are available to ensure she lives comfortably and independently.”
j. GRH 13264918: The Donor was born on 9 th March 1963 and is therefore now 56. On 26 th May 2017 he executed an instrument [ B262] in which he appointed JH and DH to be his attorneys, with authority to act jointly and severally as soon as the instrument was registered. At section 7 of the instrument under the heading ‘Instructions’, he entered the words “I want my two sons to be supported financially when and if required.”
His wife informed the Court by e-mail that GRH “has dementia which is progressing at a considerable speed,” that neither he nor she would attend the hearing but their son DH would, and their younger son TH has autism.
k. LS 13265138: The Donor was born on 30th December 1980 and is therefore now 38. On 6 th July 2017 she...
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...had passed away, because such moneys belonged to the estate: ibid [68]. (162) Ibid [51]. See also Re Various Lasting Powers of Attorney [2019] EWCOP 40, [62] ('Re Various Lasting Powers'), where Judge Hilder stated that '[principals] commonly choose their attorneys from those persons closes......