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Case law: Court rules when a Lasting Power of Attorney can be revoked because of the attorney’s behaviour

19 Jun

People asked to act as attorney under a Power of Attorney (LPA) should ensure their appointor understands the effects of the LPA, and that they – as attorney – comply with their own serious legal responsibilities under it, a legal ruling has made clear.

 A mother signed an LPA appointing her daughter as her attorney. The mother did not take legal advice on the LPA but the daughter said she had explained its effect to her mother before she signed it. It was witnessed by a family friend.

The daughter failed to keep proper accounts and records, but claimed she had not read the declaration in the LPA stating it was her responsibility to do so. She also profited from her role personally by, for example, paying her own mobile phone bill from her mother’s assets. The mother’s expenditure had increased significantly after her daughter became her attorney. According to Social Services the mother was also living in ‘squalid’ conditions, which the daughter could have made better using her mother’s funds.

The Court of Protection (the Court responsible for protecting people who lack mental capacity) ruled that the daughter had not acted in her mother’s best interests and had gone beyond her authority as attorney. It made the particular point that it was hard to believe that an attorney who had failed to read one part of the LPA herself had read another part to her mother that explained its effect. The Court also stated its concerns that the ability to register digital LPAs via an electronic service – as the attorney had done in this case – could lead to an increase in abuses of this kind.

As the mother lacked capacity to revoke the LPA, the Court did so itself, and the local authority was substituted as attorney.

The ruling highlights the serious responsibilities and obligations of acting as an attorney under an LPA, even in relation to close relatives from whom the attorney could expect to inherit in due course.

Recommendations

  • People asked to act as attorney under an LPA should ensure their appointor understands the effect of the document, either by having it read and explained to them (preferably in front of a witness) or by taking independent legal advice, particularly if they plan to register a digital LPA electronically.
  • Attorneys should also ensure they understand the serious nature of their position, and the importance of complying with their legal duties and responsibilities.
 
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Posted by on June 19, 2015 in Law Guide

 

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