Power Of Attorney Restricted Following Finding Of Undue Influence

A person who grants a Power of Attorney in favour of another provides that person with the authority to act on their behalf. Under the English legal system, there are two types of Lasting Powers of Attorney (LPA) currently available, one for a donor’s Property and Financial affairs and the other for a donor’s Health and Welfare. Those named as attorneys are able to act once the LPA has been registered with the Office of the Public Guardian (OPG).

When an attorney acts against the best interests of the donor or beyond the powers conferred upon them, the OPG will investigate and take steps to ensure the attorney acts properly or, consider an application to the Court of Protection seeking their removal. If it is found the attorney has acted in breach of their powers it is likely they will be removed, with possible sanction to remedy any loss caused to the donor. Alternatively, as set out in the recent case of Norfolk County Council v CA (by her litigation friend, the Official Solicitor) and others [2024] EWCOP 64, the attorney in question’s powers may become subject to restrictions and conditions.

Norfolk County Council v CA

Facts

That case concerned the powers of attorney granted by CA in favour of her daughter, DA. DA had been exercising her position as attorney however concerns had been raised by the care home and local authority as to DA’s conduct, particularly in relation to health and welfare matters. It was further alleged that CA became subject to undue influence by DA.

In considering the case, the Court of Protection determined that CA lacked the capacity to make decisions regarding her care, manage her property and finances, and conduct the Court proceedings. CA was however found to retain capacity regarding decisions as to who she had contact with and also the capacity to decide whether or not the LPA granted by her was revoked.

Turning to CA’s contact with DA, the Court concluded there were a number of incidents where DA had attempted to force feed CA and, on her refusal, proceeded to assault CA. There were also findings that CA became visibly distressed during her contact with DA and that DA was unreasonably monitoring CA and encouraging her to self-discharge. These actions were clearly not in the best interests of CA.

Court of Protection

The Court of Protection was then required to decide the best way forward to protect CA whilst promoting the use of her capacity. In this respect, the Court noted a decision is not deemed to be made without capacity simply because it is unwise and to this extent, CA may still choose to have contact with DA despite this appearing to be against her best interests. The Court concluded the options available to them were:

In this case, the Court of Protection felt option 3 best met CA’s best interests and noted the finding of capacity may limit the Court’s jurisdiction to revoke the LPA. Option 3 therefore best respected CA’s wishes and proved to be the least interference with the injunctions largely being agreed by DA. The injunctions included, but were not limited to:

Comment

This case demonstrates the Court of Protection allowing a Protected Person to exercise their autonomy so far as possible, as seen with DA being able to continue acting, whilst placing restrictions in place to best protect and safeguard that Protected Person.