What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a vital legal document that ensures a person’s affairs are managed according to their wishes should they become incapable of making decisions themselves due to illness or incapacity. It grants a designated individual, known as an attorney, the authority to make decisions covering health, welfare, property, and financial matters on behalf of the donor.
The Need for Challenging an LPA
The substantial power granted by an LPA can sometimes lead to its misuse or misinterpretation. Challenging an LPA becomes vital under circumstances such as concerns about the validity of its creation, questions over the donor’s mental capacity at the time it was made, or behaviours suggesting that the attorney may not be acting in the best interests of the donor. These challenges serve as a protective measure to safeguard the rights and welfare of an individual unable to make their own decisions.
Expertise of Van Eaton Probate Solicitors
At Van Eaton Solicitors, we specialise in managing the complexities of LPA disputes. As experienced probate solicitors, we bring a wealth of knowledge and a compassionate approach to each case. We are committed to defending our clients’ interests rigorously, whether it involves contesting the validity of an LPA or addressing misconduct by an attorney.
Understanding Lasting Power of Attorney (LPA)
Overview of Lasting Power of Attorney
A Lasting Power of Attorney (LPA) is an authoritative legal tool designed to ensure that an individual’s decisions regarding health, welfare, and financial affairs are taken care of by a trusted person if they lose the ability to make these decisions themselves. LPAs are critical in planning for future uncertainties related to mental and physical health.
Types of Lasting Power of Attorney:
- Health and Welfare LPA: This allows the appointed attorney to make decisions on the donor’s daily routine, medical care, living arrangements, and life-sustaining treatment preferences. It can only be used when the donor has lost mental capacity.
- Property and Financial Affairs LPA: This type enables the attorney to manage the donor’s finances, such as operating bank accounts, paying bills, collecting pensions, and even selling property—actions that can be executed even if the donor still retains mental capacity, unless specified otherwise.
Legal Prerequisites for Setting Up an LPA:
- Capacity and Consent: The donor must have the mental capacity to make an LPA, understanding the implications of the arrangement.
- Choosing an Attorney: The donor must appoint one or more attorneys whom they trust to act in their best interests. These can be family members, friends, or professionals such as solicitors.
- Formalities: Completing the LPA involves filling out a standard form, which must then be registered with the Office of the Public Guardian before it can be used. The registration process ensures that the document is scrutinised and recorded officially.
- Witnesses and Signatures: The LPA must be signed by the donor, the attorneys, and a witness. Additionally, a certificate provider (someone who certifies that the donor understands the significance and purpose of the LPA and is not under duress or undue influence) must also sign the document.
Setting up an LPA is a forward-thinking step that ensures decisions regarding a person’s welfare and assets are responsibly managed. It’s a process that requires careful consideration of who is chosen to act as an attorney and how they are expected to manage their duties. As experienced probate solicitors, Van Eaton Solicitors can guide individuals through every step of creating and registering an LPA, ensuring that all legal requirements are met and the donor’s interests are fully protected.
Grounds for Challenging an LPA
Legal Grounds for Challenging an LPA
Challenging a Lasting Power of Attorney (LPA) requires solid grounds that are broadly categorised into two types: factual objections and prescribed objections.
Factual Objections:
- Death: If the donor or the attorney passes away, the LPA is automatically nullified.
- Bankruptcy: If the donor or, particularly, the attorney becomes bankrupt, this can disqualify the attorney from managing the donor’s financial affairs under an LPA.
- Divorce or Annulment: If the attorney and donor were married or in a civil partnership that is subsequently dissolved.
- Lack of Willingness: An attorney may also renounce their responsibilities, necessitating the appointment of a new attorney if others are not designated.
Prescribed Objections:
- Lack of Mental Capacity: At the time the LPA was created, the donor must fully understand the nature of the document and the extent of the powers being granted.
- Fraud or Coercion: This includes situations where the LPA is believed to have been created under duress, or through deceitful means.
- Unsuitability of the Attorney: If there is evidence suggesting that the attorney is not acting in the best interests of the donor or is using their position for personal gain.
Who Can Initiate a Challenge?
Challenging an LPA can be initiated by various parties, each of whom may have different reasons and legal standings:
- Family Members: Relatives of the donor may challenge an LPA if they believe the donor was not competent at the time of its creation or if they suspect the attorney of abuse or neglect.
- Notified Individuals: Those who were formally notified at the time the LPA was registered, often predetermined by the donor, can lodge objections.
- Other Concerned Parties: This can include friends or other associates who have significant reasons to believe that the LPA was improperly instituted or is being abused.
Each challenge must be supported by evidence and typically involves legal proceedings. It is crucial for parties wishing to initiate a challenge to seek legal advice to understand the complexity of the process and to ensure that their challenge is made on valid, sustainable grounds. As probate solicitors, Van Eaton Solicitors can provide expert guidance and representation to those needing to challenge an LPA, ensuring the process is handled sensitively and effectively.
The Process of Challenging an LPA
How to Formally Challenge an LPA
Challenging a Lasting Power of Attorney (LPA) involves a structured legal process, which is essential to ensure that the concerns regarding misuse or invalidity are addressed properly. Here’s a step-by-step guide on how to lodge a formal objection:
- Identify the Grounds for Objection: Determine whether the challenge is based on factual or prescribed objections.
- Collect Evidence: Assemble all relevant evidence supporting the grounds for the challenge, such as medical records, financial statements, or witness testimonies.
- Complete the Necessary Forms: Fill out the appropriate objection forms provided by the Office of the Public Guardian (OPG). For factual objections, use form LPA 007; for prescribed objections, use forms LPA 008 and COP7.
- Submit the Forms: Send the completed forms to the OPG and ensure they are filed within the stipulated deadlines. Typically, objections need to be lodged within three weeks from when the LPA was registered.
- Await Investigation: The OPG will review the objection and may conduct an investigation to assess the validity of the claims.
Role of the Office of the Public Guardian and the Court of Protection:
- Office of the Public Guardian (OPG): The OPG is responsible for the registration and oversight of LPAs. They handle initial complaints and challenges and can conduct investigations into the conduct of attorneys.
- Court of Protection: If the concerns are complex or involve significant disputes over the donor’s capacity or the attorney’s actions, the case may be escalated to the Court of Protection. The court has the authority to revoke an LPA or take other actions as necessary.
Legal Representation and Its Importance
Having expert legal representation is crucial when challenging an LPA. Probate and LPA disputes can be legally complex and emotionally charged, requiring a nuanced understanding of both law and the sensitivities involved. Key benefits of engaging a specialised solicitor include:
- Expert Guidance: Solicitors specialising in probate and LPA disputes are familiar with all aspects of the law concerning LPAs. They can navigate the legal system effectively and ensure that all procedural requirements are met.
- Representation: A solicitor can represent you in dealings with the OPG and in any proceedings at the Court of Protection, advocating on your behalf and aiming to secure the best possible outcome.
- Support: Handling disputes over an LPA can be stressful. A solicitor can provide not only legal support but also emotional and practical guidance throughout the process.
Van Eaton Solicitors are experienced probate solicitors who can guide you through the process of challenging an LPA. We understand the complexities involved and are committed to providing a supportive and effective service to ensure your interests and those of your loved ones are protected.
Conclusion
Challenging a Lasting Power of Attorney (LPA) is a significant legal action that can safeguard the interests and rights of an individual who may no longer have the capacity to manage their affairs. Understanding the grounds for challenging an LPA—whether they are factual objections like death or bankruptcy, or prescribed objections such as coercion or fraud—is crucial. The process involves detailed steps, from identifying the grounds for challenge to formally lodging objections with the Office of the Public Guardian and potentially engaging with the Court of Protection.
Given the complexities involved in these proceedings, securing expert legal representation is essential. Probate solicitors specialise in navigating these sensitive issues, offering guidance through the legal landscape and providing robust support to ensure that your interests, or those of your loved ones, are effectively represented.
Need Help with an LPA Challenge? Contact Us Today!
If you are facing concerns about an LPA or need to challenge one, do not face this challenge alone. Van Eaton Solicitors are here to provide expert legal advice and representation. Our dedicated team of probate solicitors is ready to help you navigate through these complexities with professionalism and care. Contact us today to schedule a consultation or to find out more about how we can assist you:
- Phone: 0208 769 6739 / 07736790321
- Online Contact Form: Visit our website at Van Eaton Solicitors to fill out a contact form directly.
We look forward to assisting you with your legal needs and ensuring your interests are protected.
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Frequently Asked Questions on Challenging a Lasting Power of Attorney (LPA)
There are two main types of objections that can be raised against an LPA: factual and prescribed objections.
- Factual Objections: These include situations where the donor or the attorney has died, the donor and attorney were married or had a civil partnership that is now dissolved, the attorney lacks mental capacity, the attorney has chosen to stop acting, or if either the donor or attorney has become bankrupt.
- Prescribed Objections: These involve claims that the LPA was not legally created, the donor lacked mental capacity at the time of making the LPA, there was fraud or duress involved in the creation of the LPA, or the attorney is not acting in the best interests of the donor.
An LPA can be challenged by the donor, any named attorney, individuals notified about the LPA registration, or any concerned individual who believes the LPA is flawed or is being abused.
To object to an LPA:
- If you’re the donor or an attorney: Fill out the objection form from the Office of the Public Guardian (OPG) and send it to their office.
- If you’re not an attorney or the donor, but have concerns: You may need to fill out a form and send it along with a fee to the Court of Protection, unless you qualify for fee exemption or reduction due to low income or receiving certain benefits.
The OPG oversees the registration and administration of LPAs. They handle initial complaints and can conduct investigations if an attorney is accused of misusing their powers. If necessary, they can also escalate issues to the Court of Protection.
If a challenge to an LPA is successful, the LPA can be either amended or revoked, depending on the nature of the challenge. The attorney may be removed, or the LPA may be declared invalid. In cases of serious abuse, legal action may be taken against the attorney.