Re J (2010) COP 6/12/10

Under MCA 2005 s22(3) ('Powers of court in relation to validity of lasting powers of attorney') the court can consider any past behaviour or apparent prospective behaviour by the attorney (not just behaviour as P's attorney); depending on the circumstances and gravity of any offending behaviour found, it can then take whatever steps it regards as appropriate in P’s best interests (this only arising if P lacks capacity) whether by revoking the power or by taking some other course.

Official summary

The following is an extract from Judiciary of England and Wales, 'Court of Protection Report 2010' (July 2011).

26. In the matter of J (Her Honour Judge Hazel Marshall QC, 6 December 2010). Mrs J was born in 1921 and lives in Surrey. This was an application by her son-in-law for an order revoking a Lasting Power of Attorney in which she had appointed a solicitor as her attorney. At paragraph 11 of the extract of the judgment, which appears on the Office of the Public Guardian’s website, Judge Marshall held that: “In my judgment, they key to giving proper effect to the distinction between an attorney’s behaviour and his behaviour in any other capacity lies in considering the matter in stages. First, one must identify the allegedly offending behaviour or prospective behaviour. Second, one looks at all the circumstances and context and decides whether, taking everything into account, it really does amount to behaviour which is not in P’s best interests, it can be fairly characterised as such. Finally, one must decide whether, taking everything into account including the fact that it is behaviour in some other capacity, it also gives good reason to take the very serious step of revoking the LPA.” At paragraph 13 she held: “on a proper construction of s 22(3), the court can consider any past behaviour or apparent prospective behaviour by the attorney, but that, depending on the circumstances and the apparent gravity of any offending behaviour found it can then take whatever steps it regards as appropriate in P’s best interests (this only arises if P lacks capacity), to deal with the situation, whether by revoking the power or by taking some other course.”

Citations

Re J (unreported decision of HHJ Marshall QC on 6/2/10)

External link

No Bailii link (because the neutral citation is unknown)

Extract from transcript