JL (Revocation of Lasting Power of Attorney)

Short Note

In JL (Revocation of Lasting Power of Attorney) [2014] EWCOP 36, Senior Judge Lush considered an application by the Public Guardian to revoke and cancel the registration of a digital LPA for property and financial affairs.  He noted that this seemed to him to be the first occasion on which the court has considered a digital LPA in the context of an application to revoke the appointment of an attorney.

A digital LPA had been executed by the donor (JL) such that her daughter (AS) would be her sole attorney.  JL did not receive independent advice about the creation of the LPA, although AS claimed she had fully explained the document to JL prior to it being executed and a friend of the family witnessed the signature and acted as the certificate provider.  Senior Judge Lush noted that:

"10.   ….The function of the certificate provider is to certify that:

(a)   the donor understands the purpose of the LPA and the scope of the authority conferred under it;

(b)   no fraud or undue pressure is being used to induce the donor to create the LPA; and

(c)    there is nothing else which would prevent the LPA from being created by the completion of the prescribed form."

In making his decision, Senior Judge Lush held that in order to revoke the LPA he had to be satisfied that AS had behaved in a way that contravened her authority or was not in JL's best interests and that JL lacked the capacity to revoke the LPA herself.

Senior Judge Lush considered the particular circumstances arising as to the making of the digital LPA:

"23.  I shall consider these reasons in a little more detail. First, AS admits that she failed to keep proper records and accounts. At the hearing she said she did not know she had to keep accounts and that she had not read the declaration in Part C of the prescribed form of LPA, which she had signed. It says:

'I understand my role and responsibilities under this lasting power of attorney, in particular:

…

…

I have a duty to keep accounts and financial records and produce them to the Office of the Public Guardian and/or to the Court of Protection on request.'

This admission is damning enough, but it gives rise to additional concern about the circumstances in which the LPA was created. If AS failed to read Part C, it makes it hard to believe her assertion that she had carefully read and explained to her mother the contents of Part A of the LPA – the part that the donor is required to complete."

Senior Judge Lush considered the evidence before him as to JL's living conditions, the application of her funds, and the pressure exerted on her by AS and went on to hold that in addition to AS acting in a way that contravened her authority and was not in JL's best interests, JL also lacked the capacity to revoke the LPA herself.