Cancellation of an enduring power of attorney
An Enduring Power of Attorney allows someone known as a donor to choose an attorney(s) to take control of their property and affairs. The attorney is authorised to access the donor’s bank accounts, sell the donor’s property or make payments. The attorney, however, does not have the authority to make decisions regarding the donor’s personal welfare matters such as residence, contact, health etc.
On 1 October 2007, Enduring Power of Attorneys were abolished and were replaced by the Lasting Power of Attorney for Property and Affairs. However, Enduring Power of Attorneys made before 1 October 2007 continue to remain effective.
A distinctive feature of an Enduring Power of Attorney is that it can be used from the moment it is executed by the donor and the attorney(s) unless specific restrictions are included. The Enduring Power of Attorney does not have to be registered first, as is the case with the Lasting Power of Attorney. However, attorneys under an Enduring Power of Attorney have the statutory duty to register the Enduring Power of Attorney with the Office of the Public Guardian when they believe that the donor is or is becoming incapable of managing their finances.
Since Enduring Power of Attorneys can be used before registration, donors should choose someone they trust. However, if an attorney has behaved inappropriately, what can be done?
1st scenario: The donor still has capacity
If the donor still has capacity, they can cancel the Enduring Power of Attorney with a Deed of Revocation. This deed needs to be signed and witnessed and kept with the Enduring Power of Attorney.
2nd scenario: The Enduring Power of Attorney is registered but the donor has regained capacity.
Once an Enduring Power of Attorney is registered (as a result of the donor becoming mentally incapable of managing their finances), an application needs to be made to the Court of Protection asking the Court to confirm the revocation. The deed, on its own, will not be sufficient. The Court of Protection will confirm the revocation of the Enduring Power of Attorney if it is satisfied that the donor:
- has done whatever is necessary in law to effect and express revocation of the power; and
- was mentally capable of revoking a power of attorney when he did so (whether or not he is so when the Court considers the application).
3rd scenario: The Enduring Power of Attorney is registered and the donor lacks capacity
In such circumstances, an application will need to be made to the Court of Protection asking the Court to direct the Public Guardian to cancel the registration of the Enduring Power of Attorney and potentially direct that a deputy be appointed to manage the donor’s finances going forward. The Court of Protection can cancel an Enduring Power of Attorney on several grounds including on being satisfied that, having regard to all the circumstances, the attorney is unsuitable to be the donor’s attorney.
The majority of cases appearing in the Court of Protection involve the attorney’s “unsuitability”. The concept of unsuitability has not been defined as such and case law over the past 10 years is referred to in determining what would be considered as unsuitable.
Re F [2004] 3 ALLER 277
F, in this case, had two children, Mr A and Mrs B. F made an Enduring Power of Attorney in 2000 appointing Mr A as her sole attorney. By 2002, F was struggling to cope and Mrs B applied to be her mother’s receiver (now known as a Deputy). This triggered Mr A’s application to register the Enduring Power of Attorney.
Mrs B objected to the registration of the Enduring Power of Attorney as she had concerns regarding her brother’s desire to sell the family home, his failure to properly secure and maintain the property, the lack of information relating to F’s affairs and his own possible financial difficulties.
In the proceedings, a medical visitor had noted that although F was suffering was dementia, she expressed her concerns regarding her children’s disagreement and felt that it would be better to appoint an independent person. The Master, who heard the case, opted for the appointment of a receiver as per F’s wishes and upheld Mrs B’s objection on grounds of unsuitability.
The case was appealed and the appeal Judge questioned whether Mr A was to be regarded as unsuitable. The Judge could not see any evidence to suggest that Mr A was unsuitable. The Judge was also not of the view that a receiver would diminish the hostility between Mr A and Mrs B. Under the circumstances, there was no justification for departing from F’s earlier wish to have Mr A act as her sole attorney.
The Master concluded that hostility amongst siblings or relatives should not be a reason to remove an attorney. An attorney would be seen as unsuitable if their competence and integrity was an issue or the continued hostility would impede the management of the estate or cause significant distress to the donor which would be avoided by appointing an independent person.
Re ED [2015] EWCOP 26
In this recent case, ED had two daughters, JD and GB. ED had made an Enduring Power of Attorney in September 2007 appointing both daughters jointly. At some stage, JD changed the appointment of the attorneys from “jointly” to “jointly and severally”. The EPA was registered by JD and once GB became aware of the change, she reported it to the Office of Public Guardian. The Public Guardian made an application to the Court of Protection to cancel the Enduring Power of Attorney.
It was JD’s case that the appointment was changed upon ED’s request and they were not aware that the amendments had to be dated and signed. The Public Guardian’s position was that JD, as a professional person with responsibilities, should have taken certain steps and contacted a solicitor.
Senior Judge Lush was concerned with JD’s behaviour since she completed a form in which she clearly stated that the attorneys had been appointed jointly and severally when she knew that was false. The Judge warned that such behaviour could lead to a conviction under the Mental Capacity Act 2005.
Since JD knowingly made a false statement, the Judge concluded that she was not suitable to be ED’s attorney. In addition, several strategic decisions had to be made in ED’s estate which the two sisters would struggle to make jointly due to their hostility. Senior Judge Lush therefore appointed an independent professional to manage ED’s finances.
Conclusion
To succeed with the revocation of an Enduring Power of Attorney after a donor has lost capacity, one must show that the attorney is “unsuitable”. An attorney may be regarded as being unsuitable if he has behaved inappropriately, he is incompetent, he has made false statements or his hostile relationship with others is affecting the management of the donor’s finances and/or causing distress to the donor. However, it is important to note that petty disputes or animosity amongst attorneys or family members will not be sufficient to remove an attorney.
If you have concerns regarding the suitability of an attorney, we suggest you seek legal advice as to whether an application to the Court of Protection is required.
