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We acted for a mother (‘G’), who had three children (‘C’, ‘CN’ & ‘J’).
G had made an application for a Lasting Power of Attorney for both Property & Finances and Health & Welfare, naming C as her sole attorney for both. J made an application to the Court of Protection to dispute the application to name C as an attorney for Property & Finances, but did not object to Health & Welfare. CN did not object to either application. We were therefore re-approached by G to defend this application, as we were the firm instructed to initially make the applications for G’s Lasting Powers of Attorney.
J’s objection to this application was alleging that this was made due to undue influence, lack of capacity and coercion on G. G wished to defend this and prove what her true intentions were.
The challenges to be addressed included:
Being able to provide sufficient evidence that G was not unduly influenced into making this application and/or coerced and that she had the requisite capacity to make her own decisions;
Acting quicky to ensure that the Court deadlines were met and to submit G’s defence to the objection;
Ensuring that G’s intentions were met and that her application could proceed.
Evidence gathering - We obtained the relevant documentation and evidence required in order to defend the application brought against our client. A witness statement was prepared on behalf of the Solicitor who originally acted for G in making the applications for Lasting Powers of Attorney and submitted to Court. This statement was submitted along with accompanying exhibits.
Defending the application - It was evident that C was the main person in G’s life, hence the reason for G wishing to name her as sole attorney. We saw the distress this objection brought to G and wanted to help resolve matters. Following a full review, it was advised that this was a matter that could easily be defended, even following the further application made seeking permission to appeal. Such application was eventually withdrawn by J by consent.
Managing the client’s emotions and expectations of the case - A family dispute is always going to be emotional for the client, especially when it is their son who is bringing the claim. We offered guidance and support throughout the process in order for it to be as smooth of a process as possible, given the circumstances. It was also stressed to G that these types of claims, once litigated in Court, can be extremely costly. It was advised to defend the proceedings and to seek recovery of costs, departing from the usual costs rule in the Court of Protection, given J’s misconduct and lack of following the pre-action protocol.
After putting our Defence forward to J’s objection of the application for a Lasting Power of Attorney in favour of C, for Property & Finances, the matter was listed for a hearing at Court.
The Court ordered the application to be dismissed on the basis that J had not followed any pre-action protocols nor tried to resolve the dispute without Court intervention. The Court confirmed that J’s application was entirely unreasonable and that the application was made purely on mere assertions and unjustified beliefs. They were satisfied, from the evidence provided, that G had capacity to make her own decisions regarding who is her attorney.
Given J’s misconduct, the Court decided to depart from the usual rule of costs and awarded G costs in her favour. It was stated that J had caused unnecessary legal expense to G, including a witness statement from a solicitor, especially given that the application was made prior to any letter of claim being sent from J.
An application was made by J to seek permission for appeal. This again was defended, and J eventually withdrew his application and this was agreed by way of a Consent Order.
Reaching this outcome had a huge impact on G’s life, as she was able to continue with naming her daughter, C, as her attorney for both Health & Welfare and Property & Finances. C was and still is a massive part of G’s life, and the objection brought a lot of stress towards G. G now does not have the stress of litigation and continuing the matter through the Court of Appeal.
Jack Bristowe, a Solicitor in the Wills, Trusts and Probate Disputes team, was committed to providing the legal assistance that G required and achieving a positive outcome in the circumstances. The goal was to achieve what was G’s true desires and intentions, by defending the objection and allowing the application for her daughter, C, to be named as her attorney for Property & Finances. The matter was successfully defended and G was also awarded her legal costs to be paid from her son, J.
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