I am instructed in a matter where an application has been made by a local authority for the LPA issued by the donor in favour of two of his children to be revoked. Unfortunately, this is heading for trial and the local authority seem to have a bottomless pit when it comes to the costs they are spending on this matter, as Counsel are heavily involved in all aspects of the matter.
My clients view, and one that I support, is that essentially the local authority had issues with the care that was to be provided by them and as the attorneys would not accept the LA view the LA made an application for a care decision to be made by the Court, but at the same time, over-egged their application by adding that the attorneyship should be revoked. It is accepted that the attorneys have not benefited financially but there appointment is being challenged on the basis that it is in the Donor’s best interests for the appointment to be revoked. This is effectively a ‘catch all’ provision available to the Court
My understanding is that the general view of the Court of Protection (certainly during the ‘Master Lush era’) was that it is ‘too violent a reaction’ to revoke an attorney’s appointment for general misdemeanours, and a revocation needs to be substantially justified as opposed to holding the attorneys to an unreasonable standard. Can anyone point me to case law that may assist (or otherwise). It would be useful to have a particular example of what has previously been deemed to be acceptable although I do of course appreciate that each matter will turn on its own facts.
Thank you for your response. Its for a finance LPA, and it appears that the matter is heading for trial. The attorneys have not been involved in any financial misappropriation so it is far removed from the rather obvious cases where the attorney has helped themselves to ownership of a luxury vehicle under the guise of needing to ‘taxi’ the donor once a year, or treated themselves to luxury holidays.
On the face of it, a standard of ‘excellence’ is being required of the attorneys as queries have been raised as to why they have spent so much on legal fees and why they have chosen to undertake particulary building work to the donor’s property that only the donor was to occupy. Further, the OPG were invited to investigate by the LA but the LA then went straight to the CoP without waiting for the OPG to conclude their investigation. At an interim hearing the Court directed the OPG to conclude their investigation but the OPG said they were unable to do so as the attorneys powers had been suspended and so they had no authority to conclude, rather they just produced a report based on their enquiries to date. It’s all a bit of a mess but the LA are not backing down.
I vaguely recollect a decision of retired Senior Judge Lush where he said that it would be “too violent a reaction” to suspend/revoke the attorneyship, but I am struggling to find that case now, and am just generally looking for any precedent whereby attorneys have had their authority revoked on a best interests basis, or generally had their authority maintained as although they may not have acted perfectly they have acted honestly and the patients wishes are to be respected.