2011 01 Incapacity

Tuesday 1 February 2011

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In the matter of RC (deceased) COP No 11639140 (Senior Judge Denzil Lush): the Senior Judge drew attention to the costs rules applicable to COP proceedings, at sections 55 and 56 of the Mental Capacity Act 2005, rules 155 to 168 of the Court of Protection Rules and Practice Directions 19A and 19B, as well as the leading cases on costs in the COP (as it now is). He decided that the general rule in rule 157 of the COP rules, that there should be no order as to costs in personal welfare proceedings, should not normally be applied in cases involving applications relating to an LAP (lasting power of attorney) in health and welfare cases. Rather, normally, the general rule in LPA property and affairs cases should apply (rule 156 – costs payable by P or his estate), subject of course to rule 159 (power to depart from normal costs rules). The Senior Judge set aside a costs order made against the attorney under rule 150 and in favour of the local authority that had objected to the validity of the LPA, for a number of reasons, including that whilst the attorney had been difficulty and unreasonable (“infuriating”) she had not been forewarned that there was a costs risk and the district judge had not considered her ability to pay and whether she had acted in good faith at least. Further, whilst the attorney’s conduct had been “difficult and vociferous” she was “not untypical of many of the litigants in person who appear on a regular basis in health and welfare proceedings in the Court of Protection”: “One or two have mental health issues of their own, and almost all of them could try the patience of a saint. Naturally, it is tempting to punish them, but in my judgment this is a temptation that should be resisted wherever possible”.Click here for the transcript.

In the matter of G (TJ) [2010] EWHC 3005 (COP)(Morgan J): Where there were no countervailing factors, in an appropriate case it could be said to be in P’s “best interests” to make an order to give effect to the decision that P, acting reasonably, would have made had P briefly regained capacity. Accordingly, P’s deputy was directed to make capital payments out of P’s funds to her adult daughter. Click here for the transcript.

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