If you would like to know whether you can remove an attorney then call our free legal helpline on 0808 139 1606 or send us an email with details of the dispute.
We are regularly consulted about disputes involving attorneys appointed under a Lasting Power of Attorney. One popular question is, ‘Can I remove an attorney from office?’
The Court’s powers to remove an attorney
The law regulating the removal of an attorney 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.
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.
How the court will deal with an application to remove an attorney
Unfortunately there is not a great deal of case law in this area.
In Re Buckley, 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 not in the donor’s best interests.
In Re OB, an attorney used the donor’s funds to convert her own property to make it more suitable for living in. The judge concluded that the attorney was taking advantage of her position and therefore not acting in the best interests of the donor.
The specific facts of each case need to be carefully considered, with an appreciation that ‘best interests’ are to some extent subjective.
The court can entertain a disclaimer from an attorney. This might be appropriate where an attorney proposes that a dispute should be resolved by appointing a professional attorney to act going forward.
Who pays the legal Costs?
The general principle is that where court proceedings concern a donor’s property and affairs the costs of the proceedings will be paid by the donor’s estate.
However the court can depart from this general rule ‘if the circumstances so justify’.
In considering whether this is justified, consideration is given to a range of factors including conduct and whether someone has succeeded in arguing their case
When looking at conduct, the court will consider whether it was reasonable for someone to pursue an issue and the way in which they have dealt with it
Unlike other legal disputes, in the court of protection a winning party cannot assume the losing party will be ordered to pay their costs. The deciding factor is often reasonableness rather than who won or lost. It is therefore important for people to bear this in mind during the course of any dispute.
How we can help
If you require free initial guidance on how to remove an attorney or are involved in a dispute regarding a lasting power of attorney then give us a call on 0808 139 1606 or send us an email with details of the dispute.