28 April 2015

Digital misconduct?


Julia Abrey
Partner | UK

In the first case to consider a Lasting Power of Attorney (LPA) for property and financial affairs made using the new online system Senior Judge Lush considered an application by the Public Guardian to revoke and cancel the registration of a digital LPA made in these circumstances. Re JL (Revocation of Lasting Power of Attorney) [2014] EWCOP 36.

In this case a digital LPA had been executed by a mother appointing her daughter as sole attorney. The mother had not received any independent advice about the creation of the LPA although the daughter claimed that she had fully explained the document to her mother prior to it being executed. A friend of the family had witnessed the donor's signature and acted as certificate provider.

Senior Judge Lush noted that the daughter had failed in her role of attorney from a number of points of view; she had not kept proper records and accounts, stating at the hearing that she did not know she had to do so and admitted that she had not read the declaration in Part C of its current form of LPA which made it clear that this was her responsibility. In addition, it was noted that her mother's expenditure had significantly increased following the daughter taking over control of her mother's financial affairs and, in particular, the daughter had profited from her position by using her mother's money to pay her own mobile phone bill had to generally placed her mother under pressure regarding financial matters.

Social Services had found that the mother was living in squalid conditions indicating the general lack of care whilst the mother had funds which could have been applied in her best interests to improve her situation.

Senior Judge Lush revoked the LPA being satisfied that the daughter had behaved in a way that contravened her authority and was not in her mother's best interest and that her mother lacked the capacity to revoke the LPA herself. The Senior Judge was particularly concerned that the method of making the LPA via the digital service had meant that a number of statements in the LPA requiring the attorney to act in a particular way had effectively been ignored. In particular the Senior Judge commented that as the attorney admitted that she had failed to read Part C this made it hard to believe her assertion that she had carefully read and explained to her mother the contents of Part A of the LPA – the part that her mother as donor was required to complete.

Category: Article