Removal of attorney or deputyRemoval of deputyApplications:property and affairs casesRemoval of deputyApplications:property and affairs casesRemoval of deputy:application,Removal of deputyApplications:property and affairs casesRemoval of deputy:behaviour to be taken into accountRemoval of deputyApplications:property and affairs casesRemoval of deputy:behaviour to be taken into accountRemoval of deputyApplications:property and affairs casesRemoval of deputy:behaviour to be taken into accountRemoval of deputyApplications:property and affairs casesRemoval of deputy:behaviour to be taken into accountRemoval of deputyApplications:property and affairs casesRemoval of deputy:behaviour to be taken into accountRemoval of deputyApplications:property and affairs casesRemoval of deputy:application,Removal of deputyApplications:property and affairs casesRemoval of deputy:application,Removal of deputyApplications:property and affairs casesRemoval of deputy:application,Removal of deputyApplications:property and affairs casesRemoval of deputyApplications:property and affairs cases
7.105A deputy or attorney may retire from their role and cease to act if circumstances change. They may do this by disclaiming the role. There are, however, occasions when another will apply to the court for the removal of a deputy or attorney. The MCA 2005 gives the court the power to revoke an LPA if P is unable to do so and the attorney:
a)has behaved, or is behaving, in a way that contravenes their authority or is not in P’s best interests; or
b)proposes to behave in a way that would contravene their authority or would not be in P’s best interests.’
1MCA 2005 s22(3)(b). 7.106The Court of Protection can also revoke the appointment of a deputy if it is satisfied that the deputy:
a)has behaved, or is behaving, in a way that contravenes the authority conferred on them by the court or is not in P’s best interests; or
b)proposes to behave in a way that would contravene that authority or would not be in P’s best interests.
2MCA 2005 s16(8). 7.107An application may be made by the OPG (following an investigation – see chapter 20),
3See, for instance, Public Guardian v JM [2014] EWHC B4 (COP). local authority safeguarding team if there are fears about financial abuse or by someone interested in P’s welfare that has well-founded fears about the management of P’s finances.
7.108As more cases continue to be reported, there is more guidance emerging about what the court considers to be behaviour that justifies the removal of either an attorney or a deputy.
7.109The cases of
Re J 4[2011] COPLR Con Vol 716. and
Re Harcourt 5[2013] COPLR 69. both comment upon the relevant behaviour to be taken into account when considering applications of this type. In
Re J HHJ Marshall QC considered the question of what conduct of the attorney would be of relevance to the question of revocation, holding that:
… on a proper construction of s22(3), the court can consider any past behaviour or apparent prospective behaviour by the attorney, [and], depending on the circumstances and apparent gravity of any offending behaviour found, it can then take whatever steps it regards as appropriate in P’s best interests (this only arises if P lacks capacity), to deal with the situation, whether by revoking the power or by taking some other course.
6Para 13.7.110Senior Judge Lush commented in
Re Harcourt that: ‘Essentially, the Lasting Powers of Attorney scheme is based on trust and envisages minimal intervention by public authorities.’
7Para 39. He went on to note that:
’The factor of magnetic importance in determining what is in Mrs Harcourt’s best interests is that her property and financial affairs should be managed competently, honestly and for her benefit.’
8Para 60.7.111In
Re AB9[2014] EWCOP 12, [2014] WTLR 1303. the court sets out the different test that applies in the revocation of an EPA as opposed to that of an LPA. In
The Public Guardian v PM and SH10[2016] EWCOP 25, [2016] COPLR 488. the court commented upon the different approach that would be taken when asked to revoke an LPA for property and affairs and an LPA for health and welfare.
7.112The cases of
Re Buckley and
Re GM discussed above also resulted in the removal of the deputies involved. Other examples of the type of behaviour that will result in the removal of the attorney or deputy can be found in
Re AB;
11[2014] EWCOP 12, [2014] WTLR 1303. The Public Guardian v AW and DH12[2014] EWCOP 28, [2014] WTLR 1705. and
The Public Guardian v DA, YS and ES.
13[2015] EWCOP 41, [2015] WTLR 1647. Finally, while
Re DB14[2014] EWHC 483 (COP), [2014] COPLR 275. is a decision relating to costs, the case is also of note for the approach taken by the court to the suitability of a proposed deputy.
7.113The process for making an application for the removal of an attorney or deputy follows that of all other applications relating to P’s property and affairs. Firstly, the applicant should obtain an assessment of capacity addressing the questions to be put before the court. Depending upon the situation the questions to be considered may include:
•whether P lacks the capacity to revoke their LPA;
•whether P can validly enter into a new LPA;
•whether P lacks capacity to request accounts from their attorney;
•whether P lacked the capacity to make a gift (or other relevant detrimental financial decision) at the relevant time.
7.114The applicant would be wise to consider the outcome for P that would be achieved through making the application, if an LPA is to be revoked and P lacks capacity to enter into a new LPA, who will manage P’s finances? It may be appropriate to ask the court, for example, not only to revoke the appointment of an attorney but to order the appointment of a neutral panel deputy.
7.115The applicant may find that they do not have access to all the information that they need to support their application. P’s financial documents are likely to be kept by the attorney or deputy. In these cases it may be preferable to approach the OPG to investigate and use its powers to obtain documents and to make any necessary application. If the applicant has access to sufficient evidence that the deputy or attorney may be acting in such a way that the court should consider their removal, then proceeding straight to apply to the court will be the quickest route to take.
7.116The applicant may consider asking for immediate directions to protect P’s position, but these are rarely granted in cases that solely concern P’s property and affairs.