Lasting Powers of Attorney: Can an attorney be removed?

We are regularly consulted about disputes involving attorneys appointed under a Lasting Power of Attorney. One popular question is whether an attorney can be removed from office.

The Court’s powers under the Mental Capacity Act 2005

The law which regulates this area is Section 22 of the Mental Capacity Act 2005. This states that where an attorney’s behaviour  contravenes his authority or is not in the donor’s “ best interests” the court can revoke the Lasting Power of Attorney in relation to any particular attorney.

Best interests

So what does the term ‘Best interests’ actually mean? Section 4 of the Act provides guidance.

It says that in determining a donor’s best interests the donor should be encouraged to participate in the decision making process, even if they are unlikely to regain capacity.

Consideration must also be given to the donor’s past and present wishes and feelings, especially any written expression of wishes that may have been made when they had capacity.

Furthermore the views of those responsible for the donor’s care are to be taken into account in determining what is in their best interests.

The case law

Unfortunately there is not a great deal of case law in this area.

 In Re Buckley [2013] EWCOP 2965, an attorney acted under the belief that the donor would have wanted her to invest £88,000 in a reptile breeding business.  The judge however regarded the business as ‘high-risk’ ruling that it was a breach of fiduciary duty and was not in the donor’s best interests.

In Re OB [2014] EWCOP 28, an attorney used the donor’s funds to convert her own property to make it more suitable.  The judge concluded that the attorney was taking advantage of her position and therefore not acting in the best interests of the donor.

In the absence of case law mirroring the circumstances of a particular case the specific facts need to be carefully considered with an appreciation that best interests are to some extent subjective.

Disclaimer

When dealing with an application the court can entertain a disclaimer from one or more attorneys. This might be appropriate where an attorney proposes that a dispute be resolved by appointing a professional attorney to act going forward.

Who pays the legal Costs?

The general principle is that where proceedings concern a donor’s property and affairs the costs of the proceedings will be paid by the donor or their estate.

However the court can depart from this general rule ‘if the circumstances so justify’.

In considering whether it is justified to do so consideration is given to a range of factors including the conduct of the parties and whether a party has succeeded on their case

When looking at conduct the court will consider whether it was reasonable for a party to pursue a particular issue and the manner in which they have dealt with it

Unlike the position in civil litigation, costs do not ‘follow the event’ in the Court of Protection. So a winning party cannot assume the losing party will be ordered to pay their costs.  The deciding factor in any consideration of legal costs is often reasonableness rather than who won or lost It is therefore important for parties to bear this in mind during the course of any dispute.

If you require guidance on removing an attorney or a dispute involving a Lasting Power of Attorney give us a call on 0808 139 1606 or send us an email with details of the dispute.

 

Author: cpl

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