This case concerned ongoing litigation over the validity and termination of an Enduring Power of Attorney (“EPA”) executed by the donor, Lloyd. Lloyd’s agent under a Personal Directive (“PD”), McDonald, had been acting both as an “interested person” under the Powers of Attorney Act, RSA 2000, c P-20, and as Lloyd’s litigation representative in proceedings related to his alleged incapacity and the administration of the EPA. Together with other parties, McDonald sought to terminate the EPA and address related financial and legal matters. The Court was asked to determine whether McDonald should be removed from her role as litigation representative and lose standing as an interested person, based on allegations of conflict of interest and failure to act in Lloyd’s best interests.

Justice Kubik emphasized the fiduciary duties owed by litigation representatives under Rule 2.21, which authorizes the Court to remove or replace a litigation representative who fails to act in the best interests of the represented party. The Court also affirmed that the powers granted to McDonald under the PD were limited to personal, non-financial decisions, and did not extend to managing litigation related to the EPA or making legal admissions on Lloyd’s behalf.

McDonald had refused to comply with a prior Court Order requiring Lloyd to undergo a Court-ordered capacity assessment. Acting in her capacity as agent under the PD, McDonald asserted that Lloyd had lost capacity and instructed Counsel to admit that fact in the proceedings. The Court found that this conduct was intended to compromise the pending Trial on Lloyd’s capacity and to substitute her own view for an objective determination by the Court, effectively undermining the Court’s role.

Kubik J. held that McDonald’s conduct reflected a conflict between her personal interests and Lloyd’s best interests, particularly as she stood to benefit under Lloyd’s will and had taken steps inconsistent with her duties as a proposed executor. As a result, the Court terminated her roles both as an interested person under the Powers of Attorney Act and as litigation representative under Rule 2.21.

Since Lloyd could not proceed in litigation without a representative, the Court invoked Rule 2.11, which requires that individuals under a legal disability be represented by a litigation representative. The Court further directed that, under Rule 2.15, the opposing parties (who were adverse in interest) must now apply to appoint a new litigation representative for Lloyd.