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How to Challenge a Lasting Power of Attorney

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Photograph of lasting power of attorney document

A Lasting Power of Attorney (LPA) is an effective and powerful tool because it empowers the attorney to perform legally binding acts on someone else’s behalf, such as signing contracts and making important decisions. As a result, the attorney bears significant responsibility and must act in the best interests of the client. If problems with the appointed attorney arise later, it may be necessary to challenge the appointment of an attorney, the transactions made on behalf of the donor or object to the LPA.

 

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legally binding document that authorises a person or people (‘attorneys’) to act on someone’s (donor’s) behalf and assist them in making financial and property decisions, as well as health and wellbeing decisions. An LPA must be made while the donor is still capable of doing so.

 

When Someone is Appointed as an Attorney, are Relatives Notified?

When someone is appointed as an individual’s attorney, their relatives are not automatically notified. It is the donor’s choice whether to notify anyone, and these individuals will be named as persons to be notified in the LPA. The person who will be notified will receive a letter informing them that the donor has made a specific type of LPA and whom they have appointed as their attorneys. If the donor does not specify who should be notified, the only people who will be automatically aware of the LPA are those named in the document, as they must sign it.

 

Can Relatives Object to the Appointment Attorney?

If someone has been designated as a person to be informed, the Office of the Public Guardian will send them a document informing them that the donor intends to register the LPA and who the nominated attorneys will be. The person who was notified has the option to object to the LPA. Their objection may be a ‘factual objection’ or an ‘objection on prescribed grounds.’

 

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

  • The donor or an attorney has passed away.

  • The donor and the attorney were married or had a civil partnership before divorcing.

  • An attorney that has been chosen lacks mental capacity.

  • An attorney has decided to retire from practice.

  • A donor or an attorney has declared bankruptcy.

 

To object based on factual objection, the person to be notified must do so within three weeks of receiving the registration notification. If the LPA has already been made, someone may object on prescribed grounds if they believe:

  • The LPA is not legally binding.

  • They do not believe the donor possessed the mental capacity to enter into an LPA.

  • When the donor regained capacity, they cancelled their LPA.

  • There was fraud, such as when someone forged the donor’s signature.

  • The donor was coerced into signing the LPA.

  • An attorney is working against the best interests of the donor.

 

Another way for the donor to object to the LPA is if the attorney is inappropriate. In this case, the donor can fill out a form and send it to the Office of the Public Guardian.

 

What Happens if there are Issues with the Appointed Attorney?

An attorney should always represent the best interests of the donor. An attorney may not, for instance, make large financial presents to people, pay themselves a payment (unless you are a professional association and it is permitted in the LPA), combine their financial affairs with those of the donor, or use their position to enrich themselves or provide a personal gain, or purchase an item from the donor at a lower market rate alone without Court of Protection’s permission.

 

If an attorney seems to be acting outside of their field of view or against the donor’s best interests, this may be grounds for objection. If anybody believes that an attorney is not pursuing the best interests of the donor or is possibly abusing their position and wishes to challenge the attorney’s appointment or specific actions, they can report this to the Office of Public Guardian, which supervises these roles.

 

The Office of Public Guardian can investigate an Attorney’s actions and can direct a Court official to visit an attorney to investigate the concerns. If there is sufficient evidence, the Office of Public Guardian may choose to remove the attorney from the LPA. The Court of Protection can cancel an LPA or take action against the attorney in some serious cases.

 

When entering into any type of power of attorney agreement or dispute, Van Eaton Solicitors provides professional legal advice to clients in England and Wales. Contact us today to find out how we can help you with your claim. To learn more about power of attorney, read our previous article. 

Here at Van Eaton Solicitors, we have successfully challenged an appointed donee of an LPA and managed to return the sun of over £500,000 to the deceased’s estate, when it was shown that the donor had abused the power given to him.