2020-03-05
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Court of Protection: our recent cases

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Posted by Mitra Mann on 14 June 2019

Mitra Mann - Probate Disputes Lawyer
Mitra Mann Senior Associate

Our Court of Protection team has been busier than ever over the past 12 months with increasing numbers of applications to the Court. The cases listed below are some of our most notable – and complex: 

Removal of professional deputy

Our client’s son suffers from cerebral palsy as a result of a birth injury for which he received substantial compensation. The Court of Protection appointed a professional deputy to manage the child’s finances but the family became increasingly concerned that the appointed deputy did not understand the impact of the family’s faith and culture on their son’s daily routine, and persistently failed to take this into account when making decisions.  We have identified a more culturally sensitive deputy on the Court’s panel of approved deputies and we have proposed, on behalf of the family, to replace the current professional deputy with this person who, we believe, will develop a more positive working relationship with our clients.

Appointment of new deputies

Our clients’ father had made an Enduring Power of attorney appointing his partner and one of his sons as his attorneys.  It later transpired that the father had instructed a solicitor to transfer his share in a property to his partner.  Our clients believe their father lacked capacity due to his deteriorating health and was unduly influenced by his partner to make the transfer.  In addition to wishing the transferred asset to be returned (as it may be required to fund his future care needs), our clients also required his partner to step down as attorney. As his partner refused to transfer the property back to him and disclaim as an attorney, we applied to the Court of Protection to (i) appoint our clients as deputies to manage their father’s property and affairs; and (ii) seek the Court’s authority to allow our clients , as litigation friends, to apply to set aside the property transaction into which their father entered when he lacked capacity. 

Approval of statutory will

Our client is the deputy for her deceased father’s former partner who is elderly, unmarried and without children, has had no or limited contact with her relatives and no longer has the capacity to make a will.  Several years ago she made a will leaving the majority of her estate to our client’s father.  No provisions were made as to what would happen should he predecease her because he was much younger than her and it was assumed she would die first.  She was aware that he had made a will leaving his estate to his two children and she wished her estate to go to him when she died with his children (including our client) ultimately inheriting her residuary estate.  Unfortunately because she was predeceased by our client’s father, and there are no other provisions in her will, her residuary estate will be distributed, as per the intestacy rules, to relatives she was not close to.  Our client does not believe this is in her best interests since it does not reflect her wishes.  We have applied to the Court of Protection for the approval of a statutory will to be made on her behalfto reflect her closer relationship with our client whilst also respecting the intestacy rules.

Formal authority to act

We are representing the parents and sister of a woman who lacks capacity.  She lives in a property specially adapted for her needs and the cost of her care is covered by her local authority.  Her parents are authorised to manage her benefits as her “appointees”.  In this capacity, they have been employing carers and entered into employment contracts with them, an act which has been questioned as they have no formal authority to do so from the Court of Protection. Obtaining formal authority is necessary so that our clients’ actions are not questioned in future and they can continue acting in their daughter’s best interests.  We have applied for our clients to be appointed as deputies for their daughter.

About the author

Mitra Mann

Senior Associate

Mitra is a specialist in both, contentious probate and contentious court of protection work.

Mitra Mann

Mitra is a specialist in both, contentious probate and contentious court of protection work.

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