Removal of Attorneys and Deputies
Many of us will be familiar with the workings of the Court of Protection and the terms ‘Attorney’ or ‘Deputy’ but very few of us are likely to understand what to do when things go wrong.
If you or someone you care about has their financial affairs managed by an Attorney or a Deputy, whether it is a professional or a lay person, and you have concerns regarding their involvement, it may be helpful to know that under certain circumstances the Attorney or Deputy in question may be discharged by the Court.
Even if the registration of the Attorney or the appointment of a Deputy has not previously been objected to, certain circumstances may give rise to the removal of their responsibilities. The reasons why removal of an Attorney or Deputy may be considered are endless and constantly evolving but the primary test for both Attorney’s and Deputy’s is derived from the Mental Capacity Act 2005 Section 16(8) which states;
“(8) The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on him if it is satisfied that the deputy:-
(a) has behaved, or is behaving, in a way that contravenes the authority conferred on him by the court or is not in P’s best interests, or
(b) proposes to behave in a way that would contravene that authority or would not be in P’s best interests.”
Some of the most common reasons why an Attorney or Deputy may be removed can include things such as financial mismanagement or abuse, a conflict of interest or family conflict.
The removal of an Attorney can be problematic in that the Attorney or Attorney’s would have been appointed by the Donor themselves and as such, that person presumably would have chosen them on the basis that they are trustworthy and reliable. It would need to be proven that the role of Attorney had been obtained by way of fraud or undue pressure or that the Attorney has behaved, is behaving or proposes to behave in a way that contravenes his authority or is not in the Donor’s best interests.
The removal of a Deputy is thought to entail generally a wider test than that of an Attorney. This is simply because the Court grants an Order to appoint a Deputy and within that Order the Court retains the power to vary or discharge its terms.
The process of removing an Attorney or Deputy would involve an application to the Court which includes a detailed witness statement. Within the application it would be necessary to prove that the Attorney or Deputy acted so unreasonably as to warrant their discharge. Applying the relevant facts to the above-mentioned threshold, bearing in mind the existing Case Law, is the task for the person making the application.
If you have any concerns about an individual or would like further information or advice, please contact the below: