The importance of a Lasting Power of Attorney (LPA) cannot be overestimated in legal matters regarding family members who have lost mental capacity. An LPA serves as a safety net, offering a layer of protection for individuals who are unable to make decisions on their own due to illness or incapacitation. It empowers them to appoint an attorney - a trusted individual - to act on their behalf and make key decisions that have profound impacts on their life and wellbeing.

However, life being as unpredictable as it is, there may arise instances where it becomes necessary to remove the appointed attorney from their position. This decision, like the initial appointment, carries weighty implications and should not be taken lightly.

In the following guide, the expert will disputes solicitors from JMW outline the key implications that having an attorney can bring and how you can go about removing and replacing one if needed.

Why an Attorney Might Be Chosen for an LPA

The process of selecting an attorney to appoint under an LPA should be thoughtful and deliberate. Individuals often choose their attorney based on several key factors such as mutual trust, a close personal relationship, or even professional competence - an attorney may be a specialist legal professional, or may simply be a trusted family member.

The goal of the selection process is to choose an attorney who will make decisions in the best interests of the individual who cannot do so themselves. The attorney's role carries significant responsibility, and the duties associated are not to be taken lightly.

Grounds for Removal of an Attorney from an LPA

Despite all the care and attention put into choosing the right attorney, circumstances can change, necessitating the removal of the appointed attorney from the LPA. There are a variety of grounds on which an attorney may be removed from their position. These include the attorney losing capacity themselves, meaning they are no longer able to fulfil their role, or the attorney acting beyond their given power, where they make decisions or take actions that are not within the scope of the authority granted to them. However, the most common reason an attorney may be removed is if they fail to comply with their duties. This is known as a breach of duty and can have serious repercussions for the individual who placed their trust in the attorney.

The power of attorney position allows a significant amount of control over the decision-making in the individual's life, meaning they are left vulnerable. Unfortunately, it is not unheard of for an attorney to, in breach of their duties, access the individual's bank account for their own financial gain, or make decisions against the interests of the subject of the LPA. This could be seen as a failure to comply with the attorney’s duties, and thus serve as grounds for the removal.

Who Can Apply for the Removal of an Attorney?

The application for removal of an attorney from a Lasting Power of Attorney (LPA) in the UK can be made by various parties. This includes:

1. The donor: the person who created the LPA, also known as the donor, can apply to remove an attorney if they still have the mental capacity to make such decisions.
2. Another attorney: if there are multiple attorneys appointed under the LPA, one attorney may apply to have another attorney removed.
3. The attorney themselves: the attorney who is being proposed for removal can also apply to be removed if they no longer wish to, or cannot, fulfil their duties.
4. The Office of the Public Guardian (OPG): the OPG can apply to the Court of Protection to remove an attorney if there are concerns about the attorney's behaviour.
5. A concerned party: a relative, friend, caregiver or spouse (or someone in a civil partnership) can apply for the removal of the attorney if they believe that the attorney is not acting in the donor's best interests or failing in their duties.
6. The Court of Protection: The Court can initiate the removal of an attorney in certain circumstances; for instance, if the attorney is deemed to be acting outside their remit or not in the best interest of the donor.

The Process of Removing an Attorney

Removing an attorney from an LPA should only be done with the guidance of a legal professional who can help you to avoid any mistakes in the process and ensure you get the best result. The process itself involves the Court of Protection - a court specifically established to handle matters concerning individuals who lack mental capacity. The court's involvement ensures that the rights of the individual at the heart of the matter are upheld and protected during the process.

While it may differ slightly depending on your unique circumstances, the process of removing an attorney generally follows this structure:

1. Identifying grounds for removal: the first step involves identifying legitimate grounds for the removal of the attorney and collecting supporting evidence.
2. Consider candidates for a replacement attorney: you should keep in mind that you will likely need to appoint a new attorney to take over the duties of the one you plan to remove. Keep in mind your experience with the negligent attorney to select someone who you trust not to act in the same way. This may be another family member or a professional solicitor. From here, you will need to inform the court of who you wish the new attorney to be, and your solicitor will guide you through the process of appointing them.
3. Applying to the Court of Protection: an application to remove an attorney must be made to the Court of Protection. The application should include a COP1 form (an application form) and a COP3 form (an assessment of capacity). It should outline the reasons for the application and demonstrate that the individual concerned lacks the capacity to make the decision to remove the attorney themselves. Your solicitor will help you to acquire and fill out these forms. It is important to do this correctly to avoid any delays in the process.
4. Notifying the relevant parties: you will then be required to notify the relevant parties involved. This typically includes the person who made the LPA (donor), the attorney being removed, and any other attorneys listed on the LPA. Again, your solicitor will be able to do this on your behalf.
5. Reviewing by the Court of Protection: the Court will then review the application. It might require additional evidence or arrange a court hearing before making a final judgement.
6. Awaiting the court's decision: the Court of Protection will make the final decision. If the court decides in favour of the removal, it will make an order to remove the attorney.
7. Notify the Office of Public Guardian (OPG): once the court order is obtained, the OPG must be notified of the removal. The OPG will then update its records and the removal will be officially recognised.

This process can be complex for those unfamiliar with the intricacies of the legal system. Seeking the help of JMW's specialist LPA solicitors will help you to resolve this issue with minimal stress and as quickly as possible.

Role of Legal Assistance in Removing an Attorney from an LPA

Specialist will dispute solicitors have the experience, knowledge, and understanding of the law necessary to guide you through each step of this process. This ensures that the removal of an attorney is handled correctly, efficiently and with the rights and interests of all parties involved being respected.

At JMW Solicitors, we boast a team of legal professionals with a wealth of experience in handling such sensitive matters. We understand that the process of removing an attorney from an LPA can be daunting and stressful, and we strive to guide our clients through each step of the process, making it as smooth and stress-free as possible. Our team is equipped to handle the intricacies involved, ensuring that the process is carried out professionally and that your interests are safeguarded throughout.