Case Highlights Importance of Having a Lasting Power of Attorney

05 June 2015

With an aging population and dementia sufferers expected to total 75.6 million worldwide by 2030, having a Lasting Power of Attorney in place is becoming as essential and routine as having a valid Will.

In the case of Re EL [2015] All ER (D) 71 (May), decided at the end of April this year, the Court of Protection revoked a Lasting Power of Attorney on the grounds that it was not functioning effectively and the attorneys, who were siblings, were not acting in their Mother’s best interests, due to their ongoing animosity towards each other.

The Facts of Re EL

The case concerned EL (the Mother), who had been diagnosed as having vascular dementia and was living in a care home.  In 2010, she signed her Lasting Power of Attorney for property and financial affairs, in which she appointed her children to be her attorneys. Unfortunately, her children did not trust each other and could not co-operate together in order to discharge their duties under the Lasting Power of Attorney effectively. In November 2014, the Public Guardian applied to the Court of Protection for an order to revoke and cancel her LPA and to appoint a deputy to manage EL’s property and affairs as she was incapable of doing so herself.

A previous investigation had thrown up evidence that EL’s children were unable to adhere to the schedule of agreed responsibilities under her LPA and that they had removed funds from EL's Greek bank account, an act which was deemed far in excess of the limited authority to make gifts (conferred upon attorneys generally by s 12 of the Mental Capacity Act 2005).

The Court of Protection was left to determine whether the order sought by the Public Guardian for the revocation of her Lasting Power of Attorney should be granted.

The Judgment of the Court of Protection

The court ruled that the Lasting Power of Attorney (LPA) was not functioning satisfactorily because of the corrosive effect brought on by the animosity between the siblings. They could therefore not be trusted to act in a way that took into account and protected their vulnerable Mother’s best interests. Therefore her LPA was duly revoked and an order for a deputy to be appointed to manage the Mother’s affairs was granted by the Court.

A Cautionary Tale

This sad case highlights the importance of taking the right legal advice when drafting a LPA. Understanding the options available to you is imperative when selecting your attornies and also, if you wish, setting out any restrictions on their powers or providing guidance that you would like them to follow.

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