DBF are a class act. We used them for the sale of a house. Professional, clear and responsive. Craig and Belinda who handled our case were great. Nothing was too much trouble, responsive and easy to get hold of.
Dave Weston
Recent reporting by BBC News has put a difficult question in the public eye. Relatives of the explorer Sir Ranulph Fiennes, who is 82 and has Parkinson’s disease, have said they do not know where he is and that it is “very painful” that nobody has been able to see him. It has been alleged that he has been admitted to care homes under assumed names following a family rift. His stepson has said he wants the power of attorney “removed from my own mother” and placed with people who “have fully his best interests in mind”. He has also launched a crowdfunding campaign for legal fees to “locate and safeguard” him.
None of this has been tested in court. Cheshire Police have said they are satisfied that Sir Ranulph is living in an appropriate setting with suitable care and that there are no immediate safeguarding concerns. The Office of the Public Guardian (OPG) has said it has a strict duty of confidentiality and that it would be inappropriate to comment on a specific case. Nobody has been found to have done anything wrong, and this article expresses no view on the facts.
The story does illustrate a problem that families across England and Wales face. A power of attorney is built on trust, and once the donor loses capacity there is often little day-to-day oversight. If that trust breaks down, the donor cannot end the arrangement, and relatives may have no clear right even to information. This article explains what powers of attorney are, how they end, why the position changes once capacity is lost, and what concerned people can do.
What is a power of attorney?
A power of attorney is a formal legal arrangement by which one person, the donor, authorises another, the attorney, to act on their behalf and in their name. Unlike many agency relationships it cannot be created informally. Prescribed formalities must be met, and the attorney’s authority comes entirely from the document and the statute behind it.
There are three main types in England and Wales:
- Ordinary (general) powers of attorney, governed by the Powers of Attorney Act 1971, are used mainly in commercial or transactional settings. Unless irrevocable, they generally end if the donor loses capacity, so they are no use for planning ahead.
- Enduring powers of attorney (EPAs) could be made before 1 October 2007 under the Enduring Powers of Attorney Act 1985. They survive the donor’s incapacity. No new EPAs can be made, but existing ones remain valid.
- Lasting powers of attorney (LPAs) were introduced by the Mental Capacity Act 2005 (MCA 2005) and replaced EPAs from 1 October 2007. There are two kinds: A Property and Financial Affairs LPA (form LP1F) can be used while the donor has capacity unless they say otherwise; and a Health and Welfare LPA (form LP1H) which can only be used once the donor lacks capacity, or the attorney reasonably believes they do. Either must be registered with the OPG before use.
The distinction between the two LPAs matters more than many families realise, and we return to it below.
The standards attorneys must meet
An attorney under an LPA is not free to treat the donor’s affairs as their own. They must act within the authority granted and have regard to the Code of Practice to the MCA 2005. In broad terms, once the donor lacks capacity, the attorney must:
- make decisions in the donor’s best interests, taking account of their past and present wishes, feelings, beliefs and values, and consulting those close to them where appropriate;
- choose the less restrictive option where there is a choice;
- keep the donor’s money separate from their own and keep proper records; and
- stay within the narrow limits on gifts.
Breaches are not always dishonest. Poor record keeping and misunderstanding of the role are common. But the effect on a vulnerable donor can be the same.
Revocation while the donor has capacity
The simplest route is available only to a donor who can still make the decision. Under section 13(2) MCA 2005, a donor may revoke an LPA at any time while they have capacity to do so. They can do this by:
- a deed of revocation, which is best practice because it gives clear evidence to everyone relying on it;
- express notice to the attorney; or
- their conduct, for example by granting a later LPA that is inconsistent with the earlier one. The burden of proving that intention lies on the person alleging revocation.
Afterwards, the attorney should be sent a copy of the deed immediately, because an attorney acting under an LPA is not liable to the donor or third parties until they have received notice of the revocation. If the LPA is registered, the OPG must be told, and the original and any copies should be recovered. The OPG then cancels the registration.
Capacity is decision specific and time specific. A person with Parkinson’s, dementia or another condition may have capacity to make some decisions at some times. Where revocation is being considered, the capacity assessment should be done carefully and recorded, because the revocation itself may be challenged later.
Different rules apply to old EPAs. An unregistered EPA can be revoked by deed before capacity is lost. Once registered, the donor cannot revoke it without the Court of Protection’s confirmation.
Some events end an LPA automatically: the donor’s death, and for a financial LPA the donor’s bankruptcy or debt relief order. An attorney’s appointment also ends if they disclaim, die, lose capacity, or become bankrupt (for a financial LPA). It also ends on the dissolution or annulment of their marriage or civil partnership with the donor, unless the LPA says otherwise. In those cases the LPA as a whole is revoked unless a replacement or a remaining joint and several attorney can carry on.
When the donor lacks capacity
This is the heart of the problem. A donor who lacks capacity cannot revoke the LPA. The document stays in force, and the attorney keeps their authority however concerning the situation appears. No relative, bank or agency can simply cancel it, and the OPG cannot revoke it either.
Only the Court of Protection can do this on the donor’s behalf, under section 22(4)(b) MCA 2005. The court may do so only if one of two grounds is established (section 22(3)):
- fraud or undue pressure was used to induce the donor to make the LPA; or
- the attorney has behaved, is behaving, or is proposing to behave in a way that contravenes their authority or is not in the donor’s best interests.
Three features of these grounds are worth noting.
The test looks forward as well as back. The court need not wait for harm to occur. Evidence of a proposal to act inappropriately can be enough.
It is not limited to conduct “as attorney”. The court held that behaviour of the attorney in another capacity can support revocation.
Proving a ground does not compel revocation. The court has a discretion, and whilst it can revoke a power of attorney, it may appoint the former attorney as a deputy, achieving closer supervision while respecting the donor’s choice of person to manage their affairs.
There is a practical consequence. A donor without capacity cannot make a new LPA. If the attorney is removed and no replacement is named in the document, the court will usually need to appoint a deputy. Someone who wants the power “placed in the hands of” others, should therefore be ready to propose who would take over and to explain why they are suitable.
For old EPAs the grounds differ. Where the donor lacks capacity, the court revokes an EPA if fraud or undue pressure induced it, or if, considering all the circumstances and in particular the attorney’s relationship to the donor, the attorney is unsuitable.
Money, care and contact: what the attorney can and cannot decide
Much anguish in cases like this concerns not money but whereabouts and access: where the donor lives, who cares for them, and who may visit. What the attorney can decide depends on which LPA they hold.
- A property and financial affairs attorney manages money and assets. It does not, of itself, give power to decide where the donor lives or who they see, though financial choices (such as funding a care home) have obvious consequences.
- A health and welfare attorney can make decisions about care and residence, and about who has contact with the donor, but only if the LPA covers those matters and subject to any restrictions in the document. Those decisions must still be made in the donor’s best interests.
Neither kind of attorney has unlimited power. Even a health and welfare attorney is bound by best interests and must weigh the donor’s wishes. A donor’s expressed wish to see family, or the emotional benefit of doing so, is a weighty factor.
Where the concern is isolation, the Court of Protection can also make its own best interests decisions on residence and contact, or give directions to an attorney. Family members can ask for these decisions if they can show a genuine concern. A bare wish to see the donor is not enough on its own, but the court will look carefully at any evidence that contact is being blocked without good reason.
What concerned people can do
The right response depends on the seriousness of the concern and the evidence available. Warning signs typically include unexplained withdrawals, sudden changes in living arrangements, an attorney who blocks access, unpaid care fees despite ample funds, or the donor’s whereabouts being withheld.
- Ask for information
If the issue may be poor record keeping or misunderstanding, a written request can clarify things and put the attorney on notice. Skip this step if there is any risk that assets will be moved or the donor’s position made worse.
- Report to the Office of the Public Guardian
Anyone who suspects an attorney is not performing their duties properly, or is exploiting or abusing the donor, should contact the OPG immediately. It is an executive agency of the Ministry of Justice. It maintains the registers, deals with concerns about attorneys and deputies, and supervises deputies. Concerns can be reported through the GOV.UK reporting service or on 0300 456 0300.
The OPG will usually ask for evidence, and professionals who raise a concern may be asked for capacity evidence and bank statements. If it takes the matter forward, it can send a Court of Protection Visitor to visit the attorney and investigate. In more serious cases it refers the matter to the court, which may cancel the LPA.
Two realities are worth understanding. First, the OPG is bound by confidentiality. It may act on a report without telling the person who made it what it has done. Second, it investigates where “there is the evidence and legal basis to do so”. A report resting on suspicion alone may not lead to formal action.
- Involve the police, the local authority and financial institutions
If theft or fraud may have occurred, contact the police. Section 44 MCA 2005 creates an offence of ill-treatment or wilful neglect of a person lacking capacity, punishable by a fine or up to five years’ imprisonment. An attorney can also be ordered to compensate the donor in a civil claim.
Where the donor is an adult who may be at risk of abuse or neglect, the local authority adult safeguarding team has duties to make enquiries under the Care Act 2014. A police or safeguarding conclusion that there is no immediate concern reflects the threshold for their own intervention. It does not prevent an application to the Court of Protection, which applies different tests.
Banks are often the first to see problems. They can flag unusual activity and, under their own procedures, restrict accounts while concerns are examined.
- Object to registration
An LPA cannot be used until registered, so a concern that arises before registration has a powerful early remedy. Objections to registering an LPA are made to the Court of Protection on form COP7, with the OPG notified on form LPA008. The grounds include that the document is not a valid LPA (for example, the donor lacked capacity to make it), that the power no longer exists, that fraud or undue pressure was used, or that the attorney proposes to behave in a way that contravenes their authority or is not in the donor’s best interests.
For EPAs there are five grounds: invalidity, that the power no longer exists, that the application is premature because the donor is not yet becoming mentally incapable, fraud or undue pressure, and the attorney’s unsuitability. No other grounds are valid.
- Apply to the Court of Protection
Where the OPG does not act, or a relative wants to control the process, an application can be made to the Court of Protection. A person other than the donor or attorney generally needs the court’s permission, which turns on factors including their connection with the donor, the reasons for the application and the benefit to the donor. Close relatives with a documented concern usually have a good prospect, but it should not be assumed.
Evidence matters. Useful material includes bank statements showing the pattern of spending, property records, medical or social work evidence, witness statements about the attorney’s conduct, and correspondence in which the attorney has refused to account or explain the donor’s whereabouts.
The court’s tools go beyond revocation. It can:
- give directions to the attorney on how the donor’s affairs are handled;
- require the attorney to provide information or accounts;
- decide contact and residence questions in the donor’s best interests;
- appoint a deputy; and
- make interim orders to protect the donor while the case proceeds.
Where assets are at risk or the donor’s whereabouts are unknown, applicants should ask for interim protection early.
Costs Proceedings are expensive. The court’s costs rules differ by type of case. In property and financial affairs matters the general rule is that costs are paid by the donor’s estate. In health and welfare matters the general rule is that each party bears their own costs. Either rule can be departed from, for example where a party has behaved unreasonably, so early advice on the likely costs exposure is essential.
Outcomes
If the case is made out, the court may:
- revoke the LPA, after which the OPG cancels registration and the original and office copies must be returned to it;
- revoke and appoint a deputy who reports to the OPG;
- give directions short of revocation, keeping the attorney in place under closer control;
- allow recovery of losses, through a civil claim or in the proceedings; or
- leave the arrangements untouched if the concerns are unfounded.
The last outcome deserves mention. Concern is not proof. Sometimes an attorney is acting appropriately, for instance keeping a donor’s location private for a genuine welfare reason, and the court’s role is to establish that on the evidence.
Practical points
Act early. Delay allows assets to dissipate and isolation to deepen. An early report to the OPG starts the process even if the evidence is incomplete.
Document everything. Keep dates, amounts and correspondence, and make notes of conversations promptly. Do not remove records from the donor’s home without advice.
Give the benefit of the doubt at first. Many concerns are resolved by transparency, and a measured approach preserves relationships where the explanation is innocent.
Consider the donor’s voice. If the donor has some capacity, supporting them to express their wishes, or even to revoke the LPA themselves, is quicker, cheaper and more respectful than a court application.
Take legal advice on the court route. Permission, evidence and costs all need careful handling.
Build safeguards in from the start. Anyone making an LPA can name replacement attorneys, appoint several to act jointly on major decisions, require that named people be notified on registration, and set out their wishes about care, residence and contact with family and friends. These are the best protection against the kind of dispute now being aired in public.
Conclusion
The law gives a donor a simple exit while they have capacity and a much narrower one after they lose it. Once capacity has gone, the Court of Protection is the only body that can revoke an LPA, and only on the statutory grounds. The OPG is the first place to report a concern, but it works within confidentiality and evidential limits, and the court decides.
For relatives who are worried, the message is to report, gather evidence and, if necessary, apply promptly, while accepting that the outcome depends on proof. For attorneys, the role carries real legal duties, and transparency is their best protection. For anyone making an LPA, the document is only as safe as the person named in it and the safeguards built around them.
This article was co-authored by Jack Montone who is a solicitor in our Private Client team.
It is for general information and is not legal advice. Nothing in it comments on the facts of any individual case. The law is stated as understood at the date of writing.
