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Aston Lawyer
Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10550
Experience:  Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
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I have an Enduring Power of Attorney in respect of financial

Resolved Question:

I have an Enduring Power of Attorney in respect of financial matters for a 93 year old lady. There were 2 other Trustees, both solicitors who retired, closed the practice and relinquished their trusteeship. I am now not well myself. Can I appoint another Trustee and how do I do it?
Submitted: 1 year ago.
Category: Law
Expert:  Aston Lawyer replied 1 year ago.
Hello and thanks for using Just Answer.
My name is ***** ***** am happy to assist you with your enquiry.
I am afraid that an Attorney is not able to appoint a substitutional Attorney to act in their place. Any such appointment would need to be made by the Donor herself.
Lasting Powers of Attorney (LPA) replaced Enduring Power of Attorneys a few years ago.
Both do the same thing more or less, but the documents are in a different format, and if you also want to give up your position as Attorney, the EPA would in effect be null and void and the lady would have to start again and appoint new Attorneys using an LPA.
I do not know how she is mentally, but an LPA can only be executed if she is of sound mind. If she is not, a relative would have to apply to the Court of Protection to become her Deputy.
Please let me know if you require any further clarification.
Kind Regards
Al
Customer: replied 1 year ago.
Re your rely. This lady does not have mental capacity, nor does she have any close or willing relatives. I have been diagnosed with cancer.if I die, what happens to the EPA
Expert:  Aston Lawyer replied 1 year ago.
Hi,
If anything were to happen to you the EPA would become null and void.
Then, if someone was needed to oversee the lady's finances, it would be up to them to apply to the Court of Protection- I appreciate there may not be any willing relatives, but if push comes to shove, one of them would have to take on this role.
Take care.
Kind Regards
Al
Customer: replied 1 year ago.
Thank you for your help. However this lady has deliberately excluded any relatives from her Will and not had any contact for many years. I feel sure they would refuse. PS I am her retired accountant/friend.
She is in an expensive care home and of course there are costs.
Expert:  Aston Lawyer replied 1 year ago.
The Court of Protection has a discretion as to whom it appoints and in coming to a decision, the Court of Protection will consider the vulnerable person’s best interests.
Very often, the person who wants to manage the vulnerable person’s finances will make an application to the Court of Protection requesting an Order appointing them as Deputy. In the majority of cases, the applicant is a family member or a close friend who is involved in the vulnerable person’s life.
Traditionally, the Court of Protection has preferred to appoint a relative or a friend of the vulnerable person instead of appointing a stranger. The main reason why such applicants are favoured by the Court of Protection is because they would usually have known the vulnerable person before that person lost their capacity. They would also be familiar with the vulnerable person’s wishes, feelings and their financial affairs and would therefore be in a better position to consult with the vulnerable person and encourage them to participate in making decisions.
I set out below extract of recent cases for your information- as you will see below, the Court can appoint an independent person to act if it would not be wise to appoint a family member.
Recent cases
However, in recent cases, the Court of Protection has expressed that it may not always be in the vulnerable person’s best interests to appoint a particular family member or a friend as Deputy. In Re BM (2014) EWCOP B20, Senior Judge Lush provided a non-exhaustive list of reasons as to why a family member should not be appointed as Deputy. These include:
a) The proposed deputy has physically, psychologically, financially or emotionally abused the vulnerable person;
b) There is a need to investigate dealings with the vulnerable person’s assets prior to the matter being brought to the Court’s attention, and the proposed deputy’s conduct is the subject of that investigation;
c) There is a real conflict of interest;
d) The proposed deputy has an unsatisfactory track record in managing his or her own financial affair; and
e) There is ongoing friction between various family members, which is likely to interfere with the proper administration of the vulnerable person’s affairs.
In such circumstances, the Court of Protection has indicated that it would prefer an independent professional deputy. It was also pointed out by Senior Judge Lush that where a vulnerable person has been awarded substantial compensation for personal injury or clinical negligence, the Court of Protection would prefer an independent professional deputy rather than a family member.
This judgment was considered by Senior Judge Lush in the subsequent case of London Borough of Haringey v CM [2014] EWCOP B23. The London Borough had made an application to be appointed as Deputy to manage the vulnerable person’s, GW’s, finances. GW was diagnosed with Alzheimer’s Dementia and had a history of Persistent Delusional Disorder. GW’s niece, CM, objected to the London Borough’s application on the grounds it would be in GW’s best interests for her to be appointed as Deputy since she lived close to GW’s home and had been looking after GW and helped him with his finances over the past few years.
The Court of Protection arranged for a Court of Protection Special Visitor to examine GW. During the course of the examination, GW was consistent in his negative views about CM and did not want her to control his finances. Although Senior Judge Lush acknowledged that GW’s views were not reliable, he was reluctant to override GW’s rights and expressed wish that CM should not be appointed as his Deputy. In addition, during the course of the proceedings, it transpired that CM had kept some of GW’s money for herself and had outbursts of ill temper from time to time.
Taking into account all these factors, it was held that it was in GW’s best interests for the London Borough to be appointed as Deputy. This case is another example of when the Court of Protection will not take the traditional approach of favouring a relative or a friend if it is not in the vulnerable person’s best interests.
Hope this helps.
Kind Regards
Al
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