F, Re

An attorney is not unsuitable merely because the donor’s relatives are hostile to one another. The donor’s choice of attorney carries considerable weight. Removal of a chosen attorney requires clear evidence that continuing hostility will impede proper administration of the estate or cause significant distress to the donor which an independent receiver would avoid. The Court must be satisfied that the attorney is unsuitable, rather than merely lacking proof of suitability. Where the attorney’s competence and integrity are not effectively challenged, and statutory safeguards remain available, an independent receiver should not be appointed simply to improve family relations or because it would be administratively convenient.

The appellant, the donor’s son, appealed against the refusal of the Master of the Court of Protection to register an enduring power of attorney executed by his mother in 2000. The objection was brought by the donor’s daughter and relied on the appellant’s alleged unsuitability under section 6(5)(e) of the Enduring Powers of Attorney Act 1985.

The Master relied principally on the donor’s statement to the Lord Chancellor’s Medical Visitor that, if her children could not agree, she would prefer an independent receiver. The central issue was whether family hostility and that conditional preference made the chosen attorney unsuitable, despite the absence of evidence that he lacked competence or integrity or would fail to act in the donor’s interests.

1. Appeal allowed. The enduring power of attorney was ordered to be registered. There was no order as to the costs of the appeal, and the Master’s costs order was left undisturbed.
2. The only objection pursued was unsuitability arising from disagreement between the donor’s children. The Court had to be satisfied that the attorney was unsuitable, not simply that his suitability had not been demonstrated: Re E (Enduring Power of Attorney) [2001] Ch 364.
3. Hostility between relatives does not by itself make a chosen attorney unsuitable. The effect depends on the circumstances, including the complexity of the estate and whether the hostility adversely affects its administration. The reasoning in Re W (Enduring Power of Attorney) [2000] Ch 343 supported that approach.
4. The appellant’s remaining duties were principally to sell the property, invest the proceeds and apply income for the donor’s care and needs. The fiduciary character of the power, the restrictions in section 3 of the Enduring Powers of Attorney Act 1985, and the Court’s powers to give directions or cancel registration provided safeguards.
5. Removal of a chosen attorney because of hostility required clear evidence either that the hostility would impede proper administration or that it would cause significant distress to the donor which a receiver would avoid. Neither condition was established. The donor’s statement was conditional and did not amount to a preference for an independent receiver in all circumstances. Appointment of a receiver would add expense and was unlikely to repair the family relationship.
6. Although provision of an inventory and regular accounts was encouraged, there were no grounds at that stage for a direction under section 8.

• High Court (Chancery Division): Appeal from the Master of the Court of Protection allowed. Registration of the enduring power of attorney ordered.
• Court of Protection: The Master refused registration after upholding the daughter’s objection under section 6(5)(e) of the Enduring Powers of Attorney Act 1985.