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Power of Attorney Cancelled After Court Challenge

When the holder of a Lasting Power of Attorney (LPA) does not act in the best interests of the person who created the power, an application may be made to the Court of Protection to have them removed.

A recent case heard by the Court involved an elderly woman who, after her husband died, made a will which gave virtually her whole estate to her son and named him as her executor. At the same time as her will was made, she created an LPA making him her attorney.

The LPA did not impose any restrictions on the attorney. The will and LPA were made in March 2010 and an application to register the LPA, so that the attorney could assume his powers under it, was made in November 2010.

The woman's main asset was a bungalow. As she had become increasingly frail, her son decided she should move in with him and his partner and that her bungalow should be renovated and let out. He obtained a loan of £72,000, secured against his mother's property, to that end.

However, his relationship with his partner broke down and his mother never did move in with him. The loan was spent in renovating his partner's property, leaving his mother with the responsibility of paying for the mortgage from her pension income of about £20,000 per year.

In 2012, the woman's grandson contacted the Office of the Public Guardian, voicing his concerns about the mortgage.

The subsequent investigation revealed that the woman now lacked the mental capacity to terminate the LPA and wished her son to continue to manage her affairs.

However, the Public Guardian found that the mortgage arrangements could not be considered to be in the mother's best interests and applied for the son to be removed as her attorney.

The judge concluded that even if the loan made to the son was in fact a gift, it would have been reprehensible of him to have accepted it and that, in any event, his mother did not have sufficient legal capacity to approve it. The Court revoked the LPA.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.