Judge: Senior Judge Lush
Citation:  EWCOP 12
Summary: In Re AB (Revocation of an enduring power of attorney), Senior Judge Lush was again confronted with delinquent attorneys, this time on an application made by the Public Guardian for revocation of an EPA.
The attorneys had dissipated P’s assets by gifts and loans to their family in substantial sums, unexplained expenditure and failed to pay nursing home fees leaving P with few assets and considerable debts. The gifts, loans and unexplained expenditure totalled about £98,000.
Senior Judge Lush had no difficulty in deciding to revoke the EPA. He directed himself to the court’s power under paragraphs 16(4)(g) and 16(5) of Schedule 4 to the Mental Capacity Act 2005, which state as follows:
“16(4) The court must direct the Public Guardian to cancel the registration of an instrument registered under paragraph 13 in any of the following circumstances –
(a) – (f) ….
(g) on being satisfied that, having regard to all the circumstances and in particular the attorney’s relationship to or connection with the donor, the attorney is unsuitable to be the donor’s attorney.
16(5) If the court directs the Public Guardian to cancel the registration of an instrument on being satisfied of the matters specified in sub-paragraph (4)(f) or (g) it must by order revoke the power created by the instrument.”
Senior Judge Lush referred to what the Law Commission said about the power in its report, The Incapacitated Principal, which was published in 1983 and led to the enactment of the Enduring Powers of Attorney Act in 1985. It said:
“This [the expression ‘unsuitable to be the donor’s attorney] needs some explanation. It would amount in effect to a criticism of the donor’s choice of attorney. But we would not wish this ground to be sustained merely because the attorney was not the sort of person that a particular relative would have chosen. It is our wish that the donor’s choice of attorney should carry considerable weight. Thus, for example, a mother might be content to appoint her son as her EPA attorney despite being aware of a conviction for theft. We would not want her choice of attorney to be upset simply because a particular relative would not want the son to be his attorney. The question should be whether the particular attorney is suitable to act as attorney for the particular donor. In short, the court should examine carefully all the circumstances, particularly the relationship between the donor and the attorney.”
Senior Judge Lush referred to the authorities on the subject, in particular the statement of Mr Justice Patten (as he then was) in Re F,  3 All ER 277, at page 284f:
“It seems to me that to remove a chosen attorney because of hostility from a sibling or other relative, in the absence of any effective challenge to his competence or integrity, should require clear evidence either that the continuing hostility will impede the proper administration of the estate or will cause significant distress to the donor which would be avoided by the appointment of a receiver. Neither of these conditions is satisfied by the evidence in this case.”
Finally at paragraphs 28 and 29 he said;
“28. The criteria for revoking a Lasting Power of Attorney (LPA) are different from those for revoking an EPA. Subsections (3) and (4) of section 22 of the Mental Capacity Act 2005 provide that the court may revoke an LPA if (a) the donor lacks the capacity to revoke the LPA, and (b) the attorney has behaved or is behaving in a way that contravenes his authority or is not in the donor’s best interest, or proposes to behave in such a way.
29. Generally speaking, any attorney acting under an EPA who has behaved, or is behaving, or proposes to behave, in a way that contravenes his authority or is not in the donor’s best interests is likely to be unsuitable to be the donor’s attorney, but the converse is not necessarily true. An attorney may be unsuitable to be the donor’s attorney because the attorney has fallen out with them and no longer wishes them to act, even though their conduct as attorney has been exemplary.
Comment: The facts of the case are of concern because they show yet again that often attorneys have little concept of their duties. It is also helpful as it sets out the law and practice regarding revocation of an EPA and the different test that applies compared to that applied to revocation of an LPA.