Court Revokes Lasting Power of Attorney Due to Attorney's Failure to Act in Best Interests of Donor: Re AH Case Study

Citation: [2016] EWCOP 9
Judgment on

Introduction

The 2016 case of Re AH [2016] EWCOP 9 provides a clear illustration of the standards required of an attorney under a Lasting Power of Attorney (LPA) pursuant to the Mental Capacity Act 2005 (MCA) and the associated Code of Practice. The judgment of Senior Judge Lush addressed the revocation of an LPA following significant mismanagement and failure to act in the best interests of the donor by the appointed attorney, Colin.

Key Facts

Alma, a 95-year-old woman with dementia, appointed her niece’s husband, Colin, as her sole attorney under an LPA for property and financial affairs. Colin was found to have failed in several key responsibilities including paying care home fees and providing adequate personal allowance for Alma. Concerns arose when a substantial sum of money (£29,489.97) from Alma’s account was unaccounted for, and another property was purchased in her name under unclear circumstances. The Public Guardian’s investigation revealed a consistent pattern of negligence and lack of communication by Colin. Despite repeated requests, he did not provide necessary financial information or account for his management of Alma’s assets.

The case underlines several legal principles critical to the duties of an attorney under an LPA. The MCA Code of Practice outlines duties that attorneys must fulfill. They include:

  • Duty of care to act in the best interests of the donor.
  • Fiduciary duty to act with loyalty and avoid conflicts of interest.
  • Duty not to delegate responsibilities.
  • Duty of good faith to act honestly and with integrity.
  • Duty of confidentiality.
  • Duty to comply with the directions of the Court of Protection.
  • Duty to keep accounts of the transactions carried out on behalf of the donor.
  • Duty to keep the donor’s money and property separate from their own.

Failure to comply with these duties can lead to revocation of an LPA under section 22(3)(b) and (4) of the MCA, if the attorney has behaved, is behaving, or proposes to behave in a way that contravenes their authority or is not in the best interests of the donor, and the donor lacks capacity to revoke the LPA themselves.

The principle of acting in the best interests of the donor, as per section 1(5) of the MCA, was applied throughout the judgment, guiding the decision-making of the court.

Outcomes

Senior Judge Lush found that Colin had failed to fulfill his duties under the LPA and that his actions were not in the best interests of Alma. Consequently, the court revoked the LPA and directed the Public Guardian to cancel its registration. A panel deputy was appointed to manage Alma’s property and financial affairs, and to investigate the previous management of her finances with the aim of restoring them to their correct level if necessary.

Conclusion

The judgment in Re AH reaffirms the high standards of conduct expected of attorneys under an LPA and underscores the court’s readiness to intervene when there is failure to meet legal obligations. Attorneys must act within the scope of their authority and always prioritize the donor’s best interests in managing their affairs. The ruling ensures that the welfare of vulnerable individuals is protected and that confidence in the integrity of LPAs is upheld.