fbpx

Make a Lasting Power of Attorney While You Still Have the Capacity to Do So

12th August 2022 By

Lasting powers of attorney (LPAs) enable thousands of vulnerable people to have their financial and other affairs managed by others whom they trust. However, as a High Court case showed, it is vital to remember that they can only be granted by those who retain the mental capacity to make their own rational choices.

The case concerned a 60-year-old man who had a lifelong learning disability and a diagnosis of chronic schizophrenia. In 2009, he purported to grant an LPA in favour of his two brothers and his mother. Some years later, an issue arose as to whether he at the time had the mental capacity required to execute a valid LPA.

Ruling on the matter, the Court emphasised that there was no suggestion that there had been any fraud or other misconduct on the part of his attorneys or that he was unduly influenced into making the LPA. All concerned held him in great affection and had throughout sought to act in his best interests.

Shortly before his mother’s death, he moved into a care home where he continued to exhibit his love of the arts and his enjoyment of books and music. He could manage many of the activities of daily living independently. He had, however, suffered behavioural problems and was currently subject to deprivation of liberty restrictions which prevented him from leaving the home without supervision.

After considering expert and other evidence, the Court found that he was, in 2009, incapable of making a valid LPA due to an impairment in the functioning of his brain. Although it could be inferred that the nature and importance of the document were explained to him, it could not be inferred that he was able to understand, retain or weigh any advice or information he received.

Having declared the LPA invalid, the Court directed that his affairs should henceforth be managed by a court-appointed deputy or deputies. Their identity, whether lay or professional, would be determined following a further hearing.

Source: Concious

Latest News

Tenants Can Purchase Freehold When Landlord Cannot Be Found

11th June, 2024 By

The Leasehold Reform, Housing and Urban Development Act 1993 gives qualifying leaseholders the right to join together to buy the freehold of their properties – a process known as collective enfranchisement. A recent case demonstrated that this right can be exercised even when the landlord cannot be found. The leaseholders of two flats in a terraced house wished to purchase it from the landlord, but were unable to ascertain his whereabouts and therefore could not serve notice on him under Section 13 of the Act. They therefore applied for an...

Court Refuses to Set Aside Divorce Order Applied for by Mistake

6th June, 2024 By

While the courts have a range of powers to set aside orders, they will only exercise them in limited circumstances. In a somewhat surprising case that has attracted much comment, the High Court declined to set aside a final order of divorce that had been applied for by mistake. A couple separated in January 2023, after more than 21 years of marriage. In October that year, while financial remedy proceedings were still ongoing, the wife's legal representatives inadvertently applied for a final order of divorce in respect of her instead...

Waiting Time for Grants of Probate Falls

3rd June, 2024 By

Following concerns last year about delays in processing probate applications, recent figures from HM Courts and Tribunals Service show that waiting times for grants of probate are continuing to improve. The average time from submission of a probate application to probate being granted fell to 11.3 weeks in March 2024, a decrease from 13.7 weeks in February and 13.8 weeks in January. This is the lowest figure since March 2023, when the average was 10.8 weeks. The longest waiting time since then was in November, at 15.8 weeks: that month,...

Late Appeal Against Tax Penalties Rejected

31st May, 2024 By

It is incumbent on taxpayers to make sure they fully comply with their obligations to file returns and pay any tax due. The point was illustrated by a recent case in which a taxpayer whose return had not been received by HM Revenue and Customs (HMRC) failed to persuade the First-tier Tribunal (FTT) that he should be permitted to appeal against the resulting penalties. On the evening of 31 January 2014, the man had completed his 2012/13 Income Tax return on HMRC's website. Shortly afterwards he went to Cyprus, and...