Power of the court to remove attorneys

Power of the court to remove attorneys

Re GW – a look at the power of the court to remove attorneys

Life as an attorney appointed under a Lasting Power of Attorney can be very complicated especially where the attorney has other commitments.

In the case of Re GW the Court of Protection was asked to look at the conduct of an attorney who struggled to stay on top of all his personal responsibilities.

Background to the Re GW 2015 case

In the Re GW case, the attorney’s background should have made him well qualified to be his father’s attorney. He was used to responsibility and dealing with paperwork. But he also had a lot on his plate. The attorney was a civil servant with 5 children. Two of them were disabled and the attorney had his own home to manage.

The court heard amongst other things that it was alleged the attorney had failed:

  • to pay his father’s care home fees of over £68,000;
  • to supply the local council with information to enable a financial assessment to be carried out;
  • to give the Office of the Public Guardian  financial information they had requested;
  • to provide his father with any personal allowance;
  • to visit his father for over 2 years.

The Public Guardian asked the Court of Protection to use the power of the court to remove attorneys to revoke the son’s authority. This followed a complaint from the local council and an investigation by the Office of the Public Guardian.

The Donor of a Lasting Power of Attorney can revoke the authority of their attorney, provided the Donor has the mental capacity to make that decision.  In re GW, the Court of Protection heard evidence about the attorney’s father. The court concluded he didn’t have the capacity to consent to his Lasting Power of Attorney being revoked.

The Court of Protection was asked to remove the attorney and appoint an independent deputy instead.

What is the power of the court to remove attorneys?

The Court of Protection has that authority under the s22 Mental Capacity Act 2005 if the behaviour of the attorney is not in the best interests of the incapacitated person (P).

The attorney pleaded that he had been struggling to deal with the management of his father’s finances because there had been difficulties in selling the father’s property. He claimed his father had been a hoarder and had refused to maintain the property when he lived there. The attorney said he’d been forced to spend his own money making repairs to his father’s home to sell it at a price that wouldn’t be regarded as a sale at an undervalue by the local authority.

The Court of Protection decision was that he had failed to act in the best interests of his father and the Lasting Power of Attorney should be revoked.

When applying the statutory rules the Court of Protection has an obligation to consider what is in the best interests of the incapacitated person.

Could revoking the LPA have been avoided?

Clearly, if the attorney had cooperated with the local authority and the OPG more willingly it is likely that they would not have asked the Court of Protection to revoke the LPA.

What about the way the Lasting Power of Attorney was set up?

The court heard that  ‘P’ had two children, the attorney and a younger daughter. P’s daughter had no children and worked fewer hours than the attorney. His daughter was appointed as a replacement attorney. A replacement attorney can only act if the first-named attorney dies or voluntarily gives up his position or the donor revokes that attorney’s authority.

It is not clear from the case report why the Lasting Power of Attorney was set up by ‘P’ in this particular way but it’s possible that if both children had been appointed to act as attorneys jointly and severally the situation might have been very different.

As the father was found to be incapable of giving consent to revoking his son’s authority to act as an attorney there was no option for the Court of Protection other than to revoke the whole LPA.

What can we learn from Re GW?

  1. Consider carefully before appointing an attorney whether that person really is suitable. What is their lifestyle like? Are they going to be able to carry out their duties properly?
  2. If you are an attorney who is struggling, get help as soon as you can. Help could be at a practical level or it could be that you need legal or financial advice. You may be able to recover reasonable expenses from the donor and even if you can’t you’ll be able to sleep better at night!
  3. Sometimes appointing only one attorney can’t be avoided but if it is possible to appoint more than one attorney, preferably to act jointly and severally, that option should be given serious thought.

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The information in this article is believed to be correct at the date of publication but the law may change over time.

Re GW EWCOP9 2015 MLHO 20