Keywords: Capacity, fiduciary duty, EPA; best interests
This case illustrates that, despite the lack of an explicit requirement under the MCA 2005 for an EPA attorney to act in the donor’s best interests, an attorney who exceeds their authority or behaves in a way which is not in the donor’s best interests risks being found to be “unsuitable” to be an attorney under an EPA. It also illustrates that an individual found to have breached fiduciary duty and removed as attorney may still nevertheless be a best interests consultee.
The issue was whether to revoke an EPA in which a woman (P) had appointed her husband as her sole attorney for property and affairs and, if so, whether to appoint the donor’s sister and daughter as deputies.
P now lived in a nursing home in England and her assets included properties in Spain which she jointly owned with her husband. Her husband, who had been living in Spain, had formed a relationship with M and it was suggested that she had and continued to exert a lot of influence over him. The husband conceded that M had stolen money from him. The public guardian contended that the husband had mismanaged the rental income from the properties and that P may now not receive the value of her beneficial interest in the Spanish properties. The husband admitted that he had made loans to himself from P’s funds to pay off his debts, which had been caused by his relationship with M, and that those loans had not been documented. This alone was a clear breach of his fiduciary duty as he had taken advantage of his position as attorney by using P’s money to pay off his debts and to replenish his account.
In making the determination of unsuitability the court had regard to the wider circumstances. The husband recognised that he was finding the management of the Spanish properties and travelling between England and Spain a strain and the court concluded that it would be to his benefit to relieve him of the responsibility of acting as attorney. The court also considered the practicality of the proposal to appoint the sister (living in England and visiting P regularly) and daughter (living in Spain and able to oversee the properties) jointly and severally as deputies and their likely willingness to consult the husband.
The husband felt strongly that he did not wish to be excluded from his wife’s affairs. The court noted that, even though he was being removed as the attorney, the incoming deputies would have a duty to consult him as to his views about his wife’s best interests under s.4(7) MCA 2005. Overall, the court felt that this shift in power towards the sister and daughter and away from the husband was necessary to ensure that decisions would be made in P’s best interests.