JBN, Re [2019] EWCOP 62

This case concerned an application by the Public Guardian to revoke a Lasting Power of Attorney for property and affairs (“the LPA”) made by JN, appointing his son, DN, as attorney.

The Public Guardian had concerns that DN had not acted in his father’s best interests by selling his residence for £975,000 and transferring most of the proceeds to himself. He was particularly concerned that this jeopardized JN’s future care costs. He invited the court to suspend DN as attorney and appoint an interim deputy.

DN contested the application, maintaining that JN had capacity at all times, and denied any wrongdoing. At the final hearing, the Public Guardian’s application was dismissed. DN then sought an order that the Public Guardian pay his costs of around £82,000.

His Honour Judge Marin concluded that there was good reason to depart from the normal costs rule in property and affairs cases, and made an order providing that the Public Guardian was not entitled to be paid his own costs from JN’s funds, and that he should pay 50% of DN’s costs. A number of criticisms were raised concerning the Public Guardian’s conduct, including that

  1. “before commencing proceedings, the Public Guardian should have reviewed the capacity evidence. In my judgment, had he done so with care, he would have concluded that it was weak….this led to proceedings being issued which went beyond what was necessary and reasonable.”
  2. “It is particularly concerning that the Public Guardian sought without notice orders of a very serious nature, namely the suspension of the LPA and the appointment of an interim deputy. This approach completely ignored the fact that DN was co-operating with the Public Guardian and had offered to place monies in an account to cover all care costs.”
  3. “The Public Guardian adopted what seemed to be a standard approach to litigation based on his approach to other cases. This was a serious failure especially when rule 1.4 COPR 2017 expects litigants to comply with the overriding objective. This obligation applies equally to the Public Guardian.”

The full judgement can be read here

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