Public Guardian actions lead COP to depart from costs rule

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Acting as an Attorney for someone carries significant responsibility. It means that you have been given the authority by another person (the donor), through a Lasting Power of Attorney (LPA), to make decisions on their behalf regarding their property and financial affairs, or their health and welfare.

Occasionally, disputes may arise regarding the administration of the LPA. Where proceedings concern property, the Court of Protection (COP) has established a general rule that any costs are paid by the donor or charged on their estate. However, COP rules also state that, in circumstances where the conduct of a party involved warrants it, the Court can deviate from the general rule.

This situation occurred in a recent and highly unusual case, following a successful appeal against the revocation of an LPA. Here, the Court of Protection ruled that actions of the Public Guardian precluded him from being paid costs from the donor’s estate and held that he should also pay half of the Attorney’s costs.

The justification given for departing from the general rule on costs was that:

  • the Public Guardian had failed to review clearly deficient evidence regarding the donor’s capacity and didn’t take the opportunity to refer to an expert or ask the Court to adjudicate solely on the capacity of the donor
  • the Public Guardian sought orders, without notice, to suspend the LPA and replace the Attorney with an interim Deputy, despite the Attorney having fully co-operated with the Public Guardian and having made funds available to cover care costs.