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  • Can a Lasting Power of Attorney Be Challenged?
News 2
21
Oct
Can a Lasting Power of Attorney Be Challenged?
News

A Lasting Power of Attorney (LPA) is a powerful legal tool because it allows the attorney to perform binding legal acts, such as signing contracts and taking important decisions on someone else’s behalf. As such the attorney has significant responsibility and must act in the person’s best interest.

There may be times when it is necessary to challenge the appointment of an attorney or object to the LPA if problems later emerge with the appointed attorney. Private Client Solicitor, Poppy Cooke explains more.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document that appoints a person and/or people (‘attorneys’) to act on someone’s behalf (‘donor’) and assist them when making decisions about their finances and property, and/or their health and welfare. An LPA must be made whilst the donor still has the capacity to do so.

Are there different types of attorney?

There are two different types of LPA; Property and Financial Affairs, and Health and Welfare.

A Property and Financial Affairs LPA gives an attorney the power to make decisions in regards to money and property.

A Health and Welfare LPA gives an attorney the power to make decisions in regards to a range of things such as medical care, moving into a care home and life sustaining treatment. A Health and Welfare can only be used if the donor has been deemed to have lost mental capacity by a professional.

Joint and Several LPAs: The donor has the decision to appoint numerous attorneys to act for them, with the option to appoint replacement attorneys as well. There are various ways in which you can appoint attorneys to act at any one time; if attorneys are appointed jointly, this means that all decisions that are made on the donor’s behalf must be agreed by all of the attorneys that are named in the LPA. There are some limitations should the donor choose to appoint the attorneys jointly. For example, if one of the attorneys should become unwilling or unable to act due to predeceasing the donor or losing capacity themselves, then the LPA will invalidate and none of the attorneys will be able to act at all. If the donor chooses to appoint the attorneys jointly and severally, this means that the attorneys can all agree together but in the event where one attorney may need to make a quick decision and is unable to contact the other attorneys, each attorney can also act individually to assist the donor in their decisions.

Do relatives get notified when somebody is appointed as an individual’s attorney?

Relatives will not automatically be notified when somebody is appointed as an individual’s attorney. It is the donor’s decision as to whether they wish to notify anybody and these people will be named in the LPA as a person to be notified. The person to be notified will receive a letter advising them that the donor is making a particular type of LPA and who they are appointing as their attorneys. If the donor does not include anybody to be notified, then the only people who will be automatically aware of the LPA are the people named in the LPA, as they will need to sign the document.

Can relatives object to the appointment? If so, what are some of the grounds for objection?

If someone has been listed as a person to be notified they will receive a document from the Office of the Public Guardian informing them that the donor is planning to register the LPA and who the nominated attorneys will be. The person who has been notified then has the opportunity to object to the LPA. Their objection can be based on either ‘factual objection’ or ‘objection on prescribed grounds’.

Someone can object based on factual objection if they have been listed as a person to be notified and:

  • The donor or an attorney has died
  • The donor and the attorney were married or were in a civil partnership and have now divorced
  • An attorney who has been chosen does not have mental capacity
  • An attorney has chosen to stop acting as attorney
  • The donor or an attorney has become bankrupt.

In order to object based on factual objection, the person to be notified must object within 3 weeks of receiving the notification of registration.

Someone can object based on prescribed grounds if the LPA has already been made and they believe:

  • The LPA isn’t legally correct
  • They don’t believe the donor had the mental capacity to make an LPA
  • The donor cancelled their LPA when they regained capacity
  • There was fraud, e.g., someone forged the donor’s signature
  • The donor was pressured into making the LPA
  • An attorney is acting against the donor’s best interests.

In order to object based on prescribed grounds, the person notified must be able to provide evidence to support their objection.

Another final way to object to the LPA is if the donor believes that the attorney is unsuitable. In this situation the donor can complete a form to send to the Office of Public Guardian.

What happens if problems emerge with the appointed attorney, and what can be done about this?

An attorney must always act in the donor’s best interest. An attorney must not for example, make large financial gifts to people, pay themselves a fee (unless you are a professional body and it is authorised within the LPA), mix their own finances with that of the donor’s, use their position to benefit themselves or make a personal gain or purchase something from the donor at a below market rate without the Court of Protection’s authority.

In the event where an attorney appears to be acting out of their scope or against the donor’s best interest, this could be a ground for objection. If anyone believes that an attorney is not acting in the best interests of the donor or potentially abusing their position and they wish to challenge the attorney on their appointment or on specific actions that they have taken then they can report this to the Office of Public Guardian, which oversees these roles.

The Office of Public Guardian can investigate the actions of an Attorney and can direct an official of the Court to visit an attorney to investigate the concerns. The Office of Public Guardian can then choose to remove the attorney from the LPA if they have sufficient evidence to do so. In some serious cases, the Court of Protection can cancel an LPA or take action against the attorney.

Contact Us

For advice on making an LPA and other related issues, please contact our Private Client Department.

Girlings has offices in Ashford, Canterbury and Herne Bay.

Before relying on this commentary please read the Reliance on information posted section in our Terms of Website Use in our Legal section. Please note that specialist advice should be taken in relation to any specific queries and the information above is provided for general information purposes only.

Authors

Poppy Cooke

Assistant Solicitor
Wills, Tax & Estate Administration
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