The importance of planning ahead to prevent an uncertain future

Lasting Powers of Attorney are made for a number of reasons, but one of their main purposes is to provide security against an uncertain future. A recent case has highlighted just how important this can be.

If someone who has made a Lasting Power of Attorney loses the ability or mental capacity to deal with their own affairs, then the Attorney(s) they have appointed can handle matters for them. In this way, Attorneys can provide continuity at a difficult time. They may also help to prevent legal disputes from arising in relation to decisions that need to be made.

The case of Moore v Moore [2016] EWHC 2202 (Ch) concerned a farming business partnership between Roger Moore (not that one) and his son Stephen. Roger was diagnosed with Alzheimer’s in 2011 but had been experiencing memory problems since at least 2006. As Roger’s mental health deteriorated, Stephen took a greater role in the farming business. The relationship between father and son became increasingly strained; both due to Roger’s resentment at his reduced role and by the symptoms of his condition.

Pamela (Roger’s wife and Stephen’s mother) became involved. She had never had a good relationship with Stephen and she brought a claim against him on Roger’s behalf, seeking to dissolve the farming partnership. She was adamant that Stephen’s sister should be entitled to a share of the business. She tried to use a Will that Roger had made in 2012, which disinherited Stephen, to show that Roger no longer wanted his son to take over the farm.

However, the Court decided the case in Stephen’s favour, accepting that he was entitled to take over the whole of the farming business, valued at £10 million. This was on the basis of a legal principle called proprietary estoppel.

In general terms, proprietary estoppel operates when someone promises or makes an assurance to another person and the latter then relies on that promise or assurance to their detriment.

The Court found that Roger had promised the farm to Stephen and that Stephen had relied upon this promise by devoting his life to working on the farm. By doing so, the Court also found that Stephen had suffered a detriment - particularly with regard to the better hours, pay and accommodation he could likely have expected working elsewhere.

So how could a Lasting Power of Attorney have helped in this situation?

It is clear from the judgment that the Court did not believe Roger’s actions were those he would have taken had he not been suffering with Alzheimer’s. A great deal of prominence was placed on Roger’s illness, with the judge stating that it was not simply part of the background circumstances but “the key to unlocking the issues in this case”.

The Court believed that Roger always intended for Stephen to take over the farming business and accepted Stephen’s evidence that Roger ‘in his right mind’ would never even have thought about litigating against his own son. Pamela, who brought the claim on Roger’s behalf, was criticised for her conduct towards Stephen and for taking “advantage of Roger’s mental decline”.

With that in mind, if Roger had made a Lasting Power of Attorney, it is possible that a legal battle may not have arisen. An independent Attorney, who could act on Roger’s behalf and remain impartial to the bitter family disputes in the case, might have brought a much-needed measure of calm. Furthermore, with an Attorney acting for him, Roger’s illness and the exploitation of it by Pamela would not have been the significant factors that the Court acknowledged them to be. It is impossible to say with certainty whether a legal dispute would still have arisen. However, the possible benefits of a Lasting Power of Attorney in this situation are clear.

Tantalisingly, Roger and Pamela went to a solicitor in 2010 to discuss making a Lasting Power of Attorney. In the end, however, no Power was made.

The decline in Roger’s mental health was gradual and steps should have been taken to provide legal safeguards against a future loss of mental capacity. Arguably this is easy to say with hindsight, but this is exactly the purpose for which Lasting Powers of Attorney are made: to anticipate what could go wrong, and to make matters easier should they do so.

Rachel Roche LL.M. TEP, Solicitor, is a Full Accredited Member of SFE and the Managing Director and founder at Roche Legal, a fully authorised and regulated firm specialising in advising individuals and families. The firm is based in York with clients both locally and nationally.

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