A common query we receive is that P has lost capacity - how does one remove an Attorney appointed under an LPA ?
The Mental Capacity Act 2005 under S.22 and S.23 gives the Court power to revoke an LPA or to determine any question as to the meaning or effect of a lasting power of attorney.
One must carefully consider whether the allegations have merit and who it is proposed would deal with the persons financial affairs should the LPA be revoked.
One could raise there concerns directly with the Office of The Public Guardian or the attorney.
Alternatively one could consider making an application to the Court of Protection to revoke the Power of Attorney and appoint X as a Deputy. If time is of the essence an application to the Court for Directions or Revocation maybe prudent following a letter before action.
If a person is considering a Court of Protection application they should seek legal advice before commencing.
Where a Court application for revocation is being considered the donor would need to be assessed by an expert to ascertain the following:
1. Does P have capacity to revoke their LPA ? 2. Can P validly enter into a new LPA ? 3. Does P lack capacity to request accounts from their attorney ? 4. Did P lack capacity to make the gift or relevant financial decisions at the relevant time ?
The Court can consider any past behaviour or apparent prospective behaviour by the attorney. Provided that X does not have capacity the Court has the power to take whatever steps it regards as appropriate in P's best interests, whether that be by revoking the LPA or by taking some other course.
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