Can the Court of Protection revoke a Lasting Power of Attorney?
You can revoke a Lasting Power of Attorney (LPA) if you have the mental capacity to do so but if you don’t then can anything be done?
The Public Guardian has statutory powers that can be used in certain circumstances to apply to revoke a Lasting Power of Attorney. Close relatives are often chosen to act as an attorney unfortunately, sometimes that may be a mistake. If the relative is dishonest or unscrupulous, uncovering their abuse can be particularly difficult.
In 2012 the Court of Protection was asked by the Public Guardian to consider whether it should revoke a Lasting Power of Attorney in the matter of Harcourt.
In the Harcourt case, a mother had appointed her daughter to act as her attorney. The owner of Mrs. Harcourt’s rest home became suspicious when bills were unpaid and details of credit card applications began to arrive in Mrs. Harcourt’s name. Concerns were raised through the local authority Vulnerable Adults Team who in turn contacted the Office of the Public Guardian.
Why does the Public Guardian have authority to intervene when there’s financial abuse?
Lasting Powers of Attorney were introduced by the Mental Capacity Act 2005. It gives the Public Guardian powers to investigate suspicious circumstances relating to a Lasting Power of Attorney. These include:
a) directing a Court of Protection Visitor to visit the donor of the LPA and the attorney
b) reporting to the Court of Protection on investigations being undertaken
c) requiring the attorney to produce information about the finances of the donor of the LPA.
Court of Protection powers
If the Public Guardian decides that the activities of an attorney are suspicious he/she has the authority to apply to the Court of Protection to take action. The court might order the donor’s bank accounts to be frozen and suspend the Lasting Power of Attorney while further enquiries are made. The court has the authority to revoke a Lasting Power of Attorney if it considers it is the best solution to prevent the donor from suffering further financial loss.
Although it’s reassuring to know that there is a statutory mechanism to stop the activities of a dishonest or incompetent attorney, it’s not a perfect solution to the problem. The system relies on concerned friends, relatives, carers or professionals reporting their suspicions in the first place. Not enough people know they can do that. Not many people know the Court of Protection has the power to remove an attorney or revoke a Lasting Power of Attorney. So what can you do to prevent financial abuse occurring in the first place?
Steps to take before making a Lasting Power of Attorney
- When you’re making a Lasting Power of Attorney give very careful thought to your choice of attorney.
- Don’t underestimate how much control your attorney may have over your money. If you don’t include instructions or preferences your attorneys will have the same decision-making power that you have.
- Not everyone is capable of handling the responsibility to act always in your best interests either wisely or honestly. The temptation could be too much or the responsibility could be too overwhelming.
- Think about possible events that might happen in the future and how your attorneys might react.
Taking expert professional advice can help you with the very important choices involved. You can avoid some serious problems later on by getting a specialist lawyer’s guidance.
If you have any questions or concerns about making or using a Lasting Power of Attorney or about the role of the Court of Protection talk to Barker Evans Private Client Law on 0115 7722129. We’re here to help so give us a call now.
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