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Six of one and half a dozen of the other?

28 February 2020

This case involved concerns raised by the Office of the Public Guardian (OPG) about the way an attorney was looking after his father’s affairs.  There is nothing unusual in that and the OPG often brings cases to Court where their investigations of an attorney’s behaviour have found problems. 

In this case, the attorney felt aggrieved at the way the OPG had conducted the investigation and Court case.  He asked the Court of Protection to order the OPG to pay his costs in the case which were in the region of £82,000.

From the OPG’s point of view, the attorney had sold his father’s (JN’s) house for almost £1,000,000 and transferred most of the proceeds to himself.  The OPG asked the Court to suspend the Lasting Power of Attorney and appoint a Deputy to look after JN’s funds on an interim basis.

At the final hearing the Judge decided that the son ought to stay in place as attorney.  The son felt that the OPG had launched proceedings dealing with the whole of his father’s affairs when in fact it would have been better to restrict it to the single issue of whether his father still had capacity when his house was sold.  He felt that the OPG’s evidence about capacity was weak. There was also a suggestion that the Public Guardian did not negotiate as a matter of policy. 

The OPG felt that they had valid reasons for starting this investigation and taking the matter to Court and said there was no policy not to negotiate. 

The Judge felt it was abundantly clear at the outset that the real issue was JN’s capacity at the time of the sale of his property.  Accordingly, before commencing proceedings the Public Guardian should have reviewed the capacity evidence and that had he done so with care, he would have concluded that it was weak.  Indeed, even the Special Visitor’s report was guarded.

Nonetheless, the Public Guardian was content to commence proceedings solely on the basis of the desk-top evaluation of the case carried out by an investigator.  The Judge was clear that this led to proceedings being issued which went beyond what was necessary and reasonable. 

The Public Guardian should have appreciated the obvious deficiencies in the capacity evidence.  He could have invited the son to agree to a joint expert being instructed to consider the matter before issuing proceedings so that he could consider his position carefully or he could have issued proceedings and asked the Court to adjudicate only on the issue of capacity.  Instead, he embarked upon litigation which sought a range of reliefs and orders. 

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 the son was co-operating with the Public Guardian and had offered to place monies in an account to cover all care costs. 

The Judge felt it was not surprising that interim Orders were made on paper given the way the application was put.  The application seemed to suggest serious wrongdoing on the part of the son which “did not though reflect the reality”.  The Judge felt the OPG had not considered the case properly.  He felt that the OPG taking what seemed to be a standard approach to these cases was a “serious failure”.

The Judge felt that the fairest Order was that the Public Guardian did not get his costs from JN’s funds and that he should pay 50% of the son’s costs.

Comment

This is an unfortunate case where there clearly seemed to be something to investigate at the outset but as the investigation continued, things went wrong.  The Judge seems to suggest that if the OPG had taken a step back and looked at this case on its own as opposed to what usually happened, the outcome would have been quite different. 

Interestingly, the Public Guardian did not personally address whether there was a policy not to negotiate in any case or not.  The Judge feels the Court was entitled to know if there is a policy and the Public Guardian is to file a statement to clarify that point.  I will be interested to find out the answer. 

It is unusual for the Court to depart from the usual rule about costs which is that everyone’s costs would have come out of JN’s funds.

The Judge felt that the proceedings achieved next to nothing for JN and “at a high price which he ultimately had to pay”.

Lynne Bradey View Biography

Lynne Bradey

Partner
Sheffield

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