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Power of Attorney – Decision Making

What happens when the Attorneys decision making conflicts with the best interests of the Donor?

“Charging one’s elderly mother a daily rate of £400 for visiting and acting as her attorney is repugnant” “[He] has persistently acted in bad faith” and “He even begrudges her having her hair tinted” are all comments made by Senior Judge Lush in the recent case of Re SF [2015] where the Office of the Public Guardian (OPG) had applied for the removal of an Attorney under an Enduring Power of Attorney (EPA) and for the appointment of a Panel Deputy.
In brief, the Attorney had failed to pay care fees or even to provide a personal expenses allowance on behalf of his mother, who had appointed him as her attorney but had subsequently lost mental capacity. He did however manage to remunerate himself in excess of £117,000 over an 11 year period. The Attorney objected to the application made by the OPG.
Within his objection against his removal as Attorney, he asserted that giving he would be the eventual sole beneficiary of his mother’s estate, there would be little sense in repaying the monies he had obtained from her. Furthermore, he went on to say that given his mother’s current poor health there was no need to protect her financial interests as they were effectively his! He also didn’t want to pay her personal expenses as they had been free in a previous care home and didn’t see a necessity for her to have her hair tinted.
In this case the Attorney has had little or no regard for his duties within the Mental Capacity Act 2005, with which he is obliged to comply.
When choosing an Attorney, the Donor ought to choose carefully. Attorneys should always consider the best interests of the Donor ahead of their own interests. Where possible and appropriate more than one Attorney can be chosen.
It is unusual for family members to be paid for the work undertaken as an Attorney, however the Donor may expressly instruct within a Lasting Power of Attorney (LPA) (which has since replaced the former EPA in this case), if there is a wish for the Attorney to be paid. When in doubt, the Attorney must apply to the Court of Protection for authority to accept any such payment.
In this case, the Court ordered the removal and cancellation of the Enduring Power of Attorney and the appointment of a Panel Deputy to take over the management of the Donor’s affairs.
At Wilson Browne, we are able to provide advice and assistance at the outset concerning the formation and registration of an LPA. However, our experience extends to providing assistance with applications to the Court of Protection on behalf of Attorneys and Deputies. We are also appointed amongst a small handful of professionals in the Midlands as Court of Protection Panel Deputies and regularly take on the management of finances of people in situations like the Donor in the Re SF case.
For advice or assistance regarding a Power of Attorney or a Court of Protection Application please contact Lisa Franklin.