The High Court said evidence before it overwhelmingly supported registering an enduring power of attorney (EPA) made in 2014, and declined the donor’s son’s request for another capacity assessment. The ruling, delivered on 11 April 2024, does not say that the EPA was registered.
The EPA named the donor’s husband as attorney and her daughter, E.M., as substitute attorney if he could not act. The husband died in June 2023. The daughter later gave notice of an application to register the EPA after a consultant geriatrician, Professor M., assessed the donor in September 2023 and considered her unable to manage her financial and property affairs.
The donor objected, saying she had been ill prepared for that assessment, believed she could manage her affairs and wanted to retain control. Her son, G.M., also opposed registration. He and the donor relied on an unsigned letter from Professor G., a retired professor of cardiovascular medicine, who described the donor as independent in daily living and expressed the opinion that she was of sound mind.
Justice Heslin gave greater weight to Professor M.’s opinion. He noted that Professor M. had used a structured cognitive assessment, while Professor G.’s letter did not refer to a cognitive testing tool or address the functional elements of capacity set out in the ruling. The judge also considered a report from the donor’s GP, Dr. R., who described a gradual cognitive decline and supported registration.
A second consultant geriatrician, Professor C., assessed the donor on 6 March 2024. His report said she had difficulty with several parts of a cognitive assessment, could not manage her affairs and was unlikely to improve. The judge said Professor C.’s conclusions materially matched Professor M.’s and that the GP’s evidence was consistent with both.
The ruling records that the donor’s former solicitor had received instructions not to release Professor C.’s report. The judge directed that it be made available. He had already refused the son’s request for a further assessment, explaining in this ruling that another assessment would serve no useful purpose given the evidence already obtained.
The court’s stated decision was that the evidence overwhelmingly supported registration “at this point in time”. The ruling does not specify an order registering the EPA or otherwise set out the final registration procedure.