The Importance of Choosing Attorneys who will Cooperate

If you are thinking of making a Lasting Power of Attorney (LPA), one of the most important things to consider is who to appoint as your Attorneys. Foremost in your mind might be reflecting on who you trust to act in your best interests. This is an excellent place to start, but it should not be the end of your deliberations. The ability of your Attorneys to cooperate with each other is just as crucial, as a recent case has illustrated.

In Re YW

[2016] EWCOP 18, considerable difficulties arose when a lady making a LPA appointed two of her sons and a solicitor to be her Attorneys.

The lady in question, Yvonne, had four children – Thomas, Sian, Dominic and Kevin – and it was Thomas and Kevin that she appointed to act as Attorneys alongside the solicitor. Yvonne owned two properties: a care home which she ran as a business and her cottage where she lived. The LPA was to cover property and financial affairs only, as opposed to health and welfare, and it contained a statement that any decision to sell either of Yvonne’s properties needed to be made with the agreement of at least two of her Attorneys. The LPA was made in June 2014 and registered in September of the same year.

A few months later, in April 2015, the Office of the Public Guardian (OPG) was informed of concerns that the Attorneys were not cooperating with each other and commenced an investigation to ensure that Yvonne’s interests were being protected. The investigation found that there were a number of difficulties between Thomas and Kevin which made agreement between them impossible. As a result, and because it was considered that Yvonne no longer had the mental capacity to manage her own financial affairs, the OPG applied to the Court of Protection to revoke the LPA. They proposed instead to have Sian, Yvonne’s daughter, appointed as a Deputy.

The term ‘Deputy’ warrants an explanation at this point. A Deputy is someone appointed by the Court of Protection to act on behalf of someone who lacks mental capacity. Whereas an Attorney is chosen by the person making a Power of Attorney, a Deputy is chosen by the Court. A Deputy is also under a greater level of supervision from the Court to ensure they comply with their duties to the person lacking capacity. For a more thorough explanation of the differences between the two, please see our previous article, which concerned a case where the Court revoked a Power of Attorney and appointed a Deputy.

Returning to the present case, the Court considered the OPG’s application and acknowledged that Yvonne’s LPA could not continue given the Attorneys’ differences.  However, it stated it did not have the power to revoke the LPA unless it could be determined that Yvonne did not have the capacity to do so herself. Whilst this was being ascertained, the Court ordered that the Attorneys’ powers to deal with Yvonne’s affairs should be suspended and Sian appointed as a Deputy in the meantime. The Court considered it best not to appoint a professional ‘panel Deputy’ on the basis that this would result in unnecessary costs to Yvonne’s estate, especially when Sian could act as a Deputy without charge. It was noted that considerable costs had already been incurred due to the impasse between the Attorneys to date.

The case report is replete with statements hinting at the difficult relationships between Yvonne’s children. One section of the case report notes that Dominic managed Yvonne’s care home from 2010 to 2013 until he was “ousted” by Kevin. Another section, records Kevin’s allegations that there were “large sums of money unaccounted for” in the period when Dominic ran the care home. Similarly, Thomas alleged that Kevin was mismanaging the care home; in his response to the OPG’s application to appoint Sian as a Deputy, Thomas suggested that a restriction be placed upon her so that she could not appoint Kevin as an employee of the care home or allow him to be involved with its operation in any way. In turn, Kevin is also reported to have made various allegations against Thomas, including one that he misrepresented the financial situation of the care home. Furthermore, statements in the case report suggest Sian felt that if one of her brothers were to be in total control of the estate they would not act in Yvonne’s best interests.

Clearly where relationships like these exist it would be unsuitable for such people to act together as Attorneys. Whilst relations between the siblings may well have deteriorated from the time the LPA was originally made, if such animosity had been anticipated and alternative Attorneys chosen, Yvonne could have prevented a large amount of needless expense and delay in the management of her affairs. It is worth noting that, before the LPA in question, Yvonne had made two previous LPAs the year before, with Thomas and Dominic as Attorneys. It is perhaps telling that they were revoked only a few months after they had been registered.

Obviously hindsight is a wonderful thing and makes it easy to pinpoint where such problems could have been avoided, but this doesn’t mean that lessons cannot be learned.

When making an LPA, in most cases it is preferable to appoint at least two Attorneys to manage your affairs and for them to be able to act independently as well as together (termed ‘jointly and severally’). This enables them to continue to manage your affairs even if one of the Attorneys is unable to do so for a time. Naturally, this adds in the additional consideration of how the Attorneys will be able to work with each other – not just now, but in future as well. Whilst you can’t predict exactly what may happen, when planning for the future with an LPA it is always worth spending the extra time to consider matters from all perspectives. If doing so can stop a similar situation to this case from arising then it is time well spent.