Posted: Friday, 4 January 2019 @ 13:43
Under section 22(3) of the Mental Capacity Act 2005, the
Court of Protection may revoke a LPA if it is satisfied that:
fraud or undue pressure was used to induce the Donor to
create the LPA; or
the attorney of the LPA:
has behaved, or is behaving, in a way that contravenes his
authority or is not in the Donor’s best interests; or
proposes to behave in a way that would contravene his
authority or would not be in the Donor’s best interests.
Revoking an LPA is a very serious step and the Court of
Protection will look at all the circumstances, including the gravity of the
offending or prospective behaviours.
The Court will also consider whether it is
necessary and proportionate to revoke an LPA and ultimately, whether the
revocation would be in the Donor’s best interests.
The following case show the approach taken by the Court of
Protection in deciding on revocation.
The Public Guardian v CS & PL  EWCOP30
The Donor, EL, was diagnosed with vascular dementia in 2009
and appointed her two children, CS, and PL, as her attorneys with the power to
act jointly in relation to the sale of her house and jointly and severally for
all other decisions.
The LPA was registered on 12 July 2010.
The attorneys’ relationship broke down due to differing
views on who should control EL’s finances. They each made complaints to the
Office of the Public Guardian and accused each other of misconduct.
This led to
PL making an application to the Court of Protection in December 2012 to revoke
the LPA and for PL to be appointed as sole deputy for EL’s finances. By that
time, it was apparent that EL had lost the capacity to revoke her LPA.
Senior Judge Lush took the view that the LPA was not
functioning properly due to the animosity between the attorneys and the refusal
to respect the Schedule of Agreed Responsibilities. They had also delegated
their responsibilities to their father.
In addition, the Judge believed t the attorneys
made gifts to themselves from EL’s funds which were far more than what they could
do under section 12 of the Mental Capacity Act 2005. As a result, the Judge was
satisfied that both attorneys behaved in a way that contravened their authority
and was not in EL’s best interests.
The Judge ordered the revocation of the LPA
and invited a panel deputy to apply to be appointed as EL’s deputy for property