Before: Senior Judge Lush ~ Between: The Public Guardian –and- CT(1) – and – EY(2) (Citation: [2014] EWCOP 51 (1 December 2014))

This article focuses on the Respondent’s request for an Order for Costs against the Office of the Public Guardian (OPG) with regards to the safeguarding application which arose in respect of the Respondent’s conduct under a Lasting Power of Attorney (LPA).

The Official Judgement of this case can be found on the Bailii Database for England and Wales Court of Protection Decisions.

Background:

CT suffered a stroke with caused left hemiplegia and impaired vision. CT used to reside within his own home and he had two children, a son and a daughter, EY. CT was admitted into care as he was diagnosed with vascular dementia. CT’s condition caused a rift between his family with CT and EY on one side and CT’s wife and son on the other.

On 18 June 2013, CT applied for an LPA whereby:

  • (i) EY was appointed as his Sole Attorney;
  • (ii) Moss & Coleman Solicitors as replacement Attorney; and
  • (iii) No one was served with the application

The LPA application was sent to the Office of the Public Guardian for approval. CT’s son filed an objection to the LPA application however, as he was not named within the application paperwork, his objection was refused. Shortly thereafter, the LPA was registered on 2 August 2013.

Application Proceedings:

In July 2014, the OPG filed an application under Section 48 of the Mental Capacity Act 2005 to obtain an Order with regards to CT’s capacity to make decisions in relation to his financial and property affairs. A Witness Statement also accompanied the application.

On 21 July 2014, an Order was made which directed the:

  1. OPG to serve a copy of the application and Witness Statement on the Respondents by 25 July 2014;
  2. Respondents to file and service a response by 15 August 2014; and
  3. Matter to be listed for a Directions Hearing on 20 August 2014.

Reference: Under Section 48 of the Mental Capacity Act 2005 states that “the Court may…make an Order or give directions in respect of any matter if – there is reason to believe that P lacks capacity… the matter is one to which its powers extend and it is in P’s best interests to make the Order without delay”.

Objection Proceedings: 

EY filed a Witness Statement in response to the OPG’s application which stated that:

“…the evidence in the Witness Statement shows that CT had the capacity to make complex decisions in relation to his financial and property affairs. CT underwent a further capacity assessment…and he was assessed as having the capacity to make decisions as to his residence…there have been no events which might cause a change in CT’s capacity since the last assessment…there is no valid reason why CT should not have capacity” 

EY also stated that the OPG’s application should be dismissed and that the OPG should be ordered to pay the Respondent’s costs.

Directions Hearing:

On 20 August 2014, a Directions Hearing took place between the OPG and EY whereby Senior Judge Lush made an Order:

  1. That CT had capacity to execute the LPA;
  2. The OPG to serve the application papers upon CT;
  3. The parties to identify an Expert to report on CT’s capacity by 10 October 2014;
  4. The Expert to assess CT’s capacity; and
  5. The matter be listed for a Final Hearing on 18 November 2014.

An assessment was carried out on CT on 2 October 2014. The Expert’s report was received shortly thereafter which concluded:

“…when CT was at his best he retains the capacity to manage his affairs…his capacity to litigate was not lacking however it was below a sufficient threshold…he would require a Litigation Friend” 

Final Hearing: 

On 19 November 2014, the Final Hearing took place between the OPG and EY. A draft Order was compiled by EY which directed that CT had capacity to:

  1. Revoke/suspend the LPA;
  2. Make a new LPA;
  3. Make decisions in relation to CT’s property and financial affairs;
  4. Give instructions to his Attorney in relation to his property and financial affairs; and
  5. Instruct his Attorney to provide an account of his property and financial affairs.

EY also stated that the OPG’s application should be dismissed and that the OPG should pay the Respondent’s costs or have them assessed on the standard basis if not agreed.

Decision: 

Rule 156 of the Court of Protection Rules 2007 was taken into consideration to enable Senior Judge Lush to make a decision in respect of EY’s costs. It was noted that the OPG had not sought an Order for their costs however EY had requested for her costs to be paid by the OPG.

Senior Judge Lush concluded that, due to EY’s conduct before and during the proceedings, a departure from the general rule was justified and therefore EY was ordered to pay her own costs. It was directed than an Order for Costs would not be made.

If you have any questions or queries in relation to this blog please contact Julianne Brown (julianne.brown@clarionsolicitors.com or 0113 336 3320) or the Clarion Costs Team on 0113 246 0622.

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