A Lasting Power of Attorney (LPA) allows someone, referred to as a Donor, to choose attorney(s) to take control of their finances. The Donor should choose someone they trust since once the LPA for property and affairs is registered with the Office of the Public Guardian, it can be used immediately by the attorney - unless there are a specific restrictions.
Sadly, there have been cases where attorneys have failed to carry out their duties properly. The warning signs can be very obvious or very subtle. Where the Donor still has capacity, the Donor can simply revoke the LPA if they are unhappy with the conduct of the attorney(s). However, where the Donor has lost capacity, an application may need to be made to the Court of Protection for the revocation of the Lasting Power of Attorney to remove the attorney(s).
Grounds for revoking an LPA
Under section 22(3) of the Mental Capacity Act 2005, the Court of Protection may revoke a LPA if it is satisfied that:
- fraud or undue pressure was used to induce the Donor to create the LPA; or
- the attorney of the LPA:
- has behaved, or is behaving, in a way that contravenes his authority or is not in the Donor’s best interests; or
- proposes to behave in a way that would contravene his authority or would not be in the Donor’s best interests.
Revoking an LPA is a very serious step and the Court of Protection will look at all the circumstances, including the gravity of the offending or prospective behaviours. The Court will also consider whether it is necessary and proportionate to revoke an LPA and ultimately, whether the revocation would be in the Donor’s best interests. The following cases show the approach taken by the Court of Protection in making a decision on revocation.
The Public Guardian v CS & PL [2015] EWCOP30
The Donor, EL, was diagnosed with vascular dementia in 2009 and appointed her two children, CS and PL, as her attorneys with the power to act jointly in relation to the sale of her house and jointly and severally for all other decisions. The LPA was registered on 12 July 2010.
The attorneys’ relationship broke down due to differing views on who should control EL’s finances. They each made complaints to the Office of the Public Guardian and accused each other of misconduct. This led to PL making an application to the Court of Protection in December 2012 to revoke the LPA and for PL to be appointed as sole deputy for EL’s finances. By that time, it was apparent that EL had lost the capacity to revoke her LPA.
At a hearing in August 2013, the two attorneys subsequently agreed to try and work together and agreed a “Schedule of Agreed Responsibilities”. Unfortunately they failed to adhere to it.
In 2014, the Office of the Public Guardian carried out an investigation and noted that the two attorneys were not able to work together and they had taken funds out of EL’s bank account for their personal benefit. CS had received £22,553.31 whilst PL had received £19,925.63. Both attorneys regarded EL’s monies in her bank account as their inheritance. In November 2014, the Public Guardian made an application to the Court of Protection for the revocation and cancellation of the LPA and an order directing the appointment of a panel deputy to manage EL’s finances.
CS consented to the Public Guardian’s application but PL opposed it and suggested that he should be appointed sole deputy with an independent deputy to oversee his activities.
The decision
It became apparent to Senior Judge Lush that the LPA was not functioning properly due to the animosity between the attorneys and the refusal to respect the Schedule of Agreed Responsibilities. They had also delegated their responsibilities to their father.
In addition, the Judge was of the view that the attorneys made gifts to themselves from EL’s funds which were far in excess of what they were allowed to do under section 12 of the Mental Capacity Act 2005. As a result, the Judge was satisfied that both attorneys behaved in a way that contravened their authority and was not in EL’s best interests. The Judge ordered the revocation of the LPA and invited a panel deputy to apply to be appointed as EL’s deputy for property and affairs.
A subsequent case regarding the revocation of LPAs followed only a month later and was heard by the same Judge.
Public Guardian v SR & NC [2015] EWCOP32
In this case, MC, made an LPA on 12 June 2009 appointing her two children, NC and SR, jointly and severally to be her attorneys for property and affairs. This LPA was registered on 24 September 2009.
NC, the co-attorney, allowed SR to take over the management of MC’s finances. On 28 October 2011, MC made a will in which she left 95% of the estate to SR and left only 5% to NC. Soon after, the attorneys’ relationship broke down and when SR placed MC’s house on the market, NC became suspicious and entered a restriction at the Land Registry to stop SR from selling MC’s house without his consent.
In May 2014, it was brought to the Office of the Public Guardian’s attention that SR had spent a significant sum of MC’s money for her personal benefit. In addition, MC’s care home fees were unpaid. The Office of the Public Guardian carried out an investigation and found that SR had spent £451,513 of MC’s money through cash withdrawals (£220,799); cheques (£44,966); bank transfers (£176,755); and personal holiday (£8,993). In November 2014, the Public Guardian made an application to the Court of Protection for the revocation and cancellation of the LPA and an order inviting the Council to apply for a deputyship order for MC’s finances.
The Council responded by confirming that it was willing to act as MC’s deputy. NC objected to the Public Guardian’s application and proposed that SR be removed and for him to remain as sole attorney under the LPA. SR initially agreed to the Council taking over as Deputy since she did not want NC to be the sole attorney. However, she changed her mind when she was informed that the Council would charge for acting as Deputy.
The decision
Senior Judge Lush was satisfied that MC was unable to revoke the LPA herself. The Judge also concluded that by taking significant sums of monies (£451,513), SR had behaved in a way which contravened her authority and was not in MC’s best interests. As regards NC’s behaviour, the Judge accepted his explanations that he allowed SR to take charge, which he also admitted was an error of judgment. However, the Judge noted that when NC suspected SR’s motives, he tried to safeguard MC’s property by entering a restriction at the Land Registry. The Judge did not see any evidence that NC had or proposed to behave in a way which would contravene his authority or would not be in MC’s best interests.
The Public Guardian argued that the relationship between NC and SR could affect the proper administration of MC’s estate should NC remain as sole attorney. However, the Judge was not convinced that their relationship was that fraught. The factor of most importance in this case, according to Senior Judge Lush, was respecting MC’s wishes as expressed in her LPA. Since NC’s past or future behaviour was not in issue, the Judge held that it would be in MC’s best interests not to fully revoke her LPA but for NC to remain as her sole attorney.
Conclusion
Attorneys under an LPA are expected to act in the Donor’s best interests at all times and follow the Code of Practice. If they cannot be trusted to act in the Donor’s best interests, recent case law has shown that the Public Guardian and the Court of Protection will intervene and the LPA may be revoked and cancelled in some circumstances.
Attorneys should therefore seek legal advice if the actions they propose will exceed their statutory powers and will require the Court of Protection’s approval.
