The Court of Protection has come to the rescue of an elderly man who wished to have access to his own funds.
The man, now aged 87, appointed his son and daughter to be his attorneys under an Enduring Power of Attorney (EPA) executed a few months after his wife died in 2007.
He remarried in 2010 and a few months before that he gave his prospective future stepson £100,000. He later gave him an additional £5,000. When his son and daughter became concerned about some of his expenditure, they applied to register the EPA with the man's approval and that of his wife. Under the law relating to EPAs (which are no longer available, having been replaced by Lasting Powers of Attorney), they can only be registered when the attorneys believe the creator of the EPA has lost mental capacity.
This took place in May 2013. In August that year, they sought to limit his access to his income and his capital.
Unsurprisingly, his relationship with his children deteriorated and in 2014 he applied to the Court of Protection to have the EPA revoked on the ground that the denial of access to his own money by his attorneys was 'financial abuse'.
Crucially, when the application was made, he had had his signature witnessed by his doctor, who supported his application, despite the man having 'mild vascular dementia'.
The doctor's statement specifically addressed the questions the Court must ask, stating that he believed that the man had the capacity to sign a revocation of the EPA and that he was:
- able to understand who the attorneys were, what authority they had and why it was necessary or expedient to revoke the power;
- able to retain information relating to issues regarding revocation of the EPA;
- able to weigh relevant information such as the benefits and risks of revoking the EPA; and
- able to comprehend information relevant to the decision, retain that information, weigh it 'in the balance' so as to make a considered choice and communicate that decision.
The judge rejected the attorneys' submissions that the EPA should remain in force and, in a severe judgment, ordered that both parties' costs should be paid by the attorneys.