Can a Lasting Power of Attorney be challenged?

Tue 13th Dec 2022

Coodes’ Hayley Gaffney looks at the role of a Lasting Power of Attorney and the circumstances where you can challenge an LPA…

A Lasting Power of Attorney (LPA) is a legal document that you can use to appoint one or more people to make decisions on your behalf in case you become physically or mentally incapacitated in the future.

According to the charity Age UK, ‘An LPA covers decisions about your financial affairs, or our health and care. You would set up an LPA if you want to make sure you’re covered in the future.’

At Coodes, we have written extensively about Powers of Attorney on our blog page and more detailed information about LPAs can be found here.

Different Types of Lasting Power of Attorney

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

A Property and Finances LPA gives the attorney(s) the power to make decisions on behalf of the person who granted the LPA (called the Donor) in relation to money and property

A Health and Welfare LPA gives the attorney(s) the power to make decisions on behalf of the Donor in relation to things such as medical care, medical treatment, or the need to move into a care home.

A Health and Welfare LPA can only be used if the Donor is deemed, by a medical professional, to have lost the mental capacity to make those decisions themselves.

Notification of a Lasting Power of Attorney

Relatives of the Donor will not automatically get notified of an LPA. It is the Donor’s decision whether they want anyone to be notified, such as member of their family.

Once the Donor has decided who they want to be notified, they will be named in the LPA. Those people will then receive a letter to advise them.

Challenging a Lasting Power of Attorney

Someone named as a person to be notified will receive a document from the Office of the Public Guardian (OPG) informing them that the LPA is being registered and the names of the attorneys. The notified person then has the opportunity to object to the LPA.

Objections

The challenge to the registration of an LPA can only be objected based on either factual objections or objections on prescribed grounds.

A factual objection may include things like the Donor or attorney’s death, or the Donor and attorney having previously been married but now divorced.

Other examples include an attorney not having the necessary mental capacity, as well as an attorney choosing to stop acting as an attorney or the Donor or attorney has become bankrupt.

The notified person must object with factual objections within three weeks of receiving the notification from the OPG.

Objections on prescribed grounds can be raised once the LPA has been made and registered. These can include reasons such as the belief that the LPA is legally incorrect, an attorney is not acting in the Donor’s best interests, there was fraud, the Donor lacked the mental capacity to make the LPA or the Donor was pressured into making the LPA.

Any such objections must be supported by evidence from the notified person.

If the donor themselves believes that their attorney is unsuitable, a Power of Attorney form can be sent to the OPG to object in that way too.

Problems with an Attorney

An attorney must always act in the best interest of the Donor.

They must not make large financial gifts, take payment for themselves unless they are a professional authorised to do so, confuse or merge their finances with those of the Donor, abuse that position by benefitting themselves, or make a person gain or act in a way which is self-dealing.

If it appears that they are acting contrary to this, this would be a ground for objection and this can be reported to the OPG.

The OPG, who oversees these roles, can investigate the attorney’s actions, and even remove the attorney from the LPA if there is sufficient evidence to do so.

In the most serious of cases, the Court of Protection can even cancel the LPA and/or take legal action against the attorney.

How can we help?

If you believe that an LPA should be challenged, then speak to our experts in the Personal Disputes Team who can advise and help you with this complicated and often emotive legal issue. You can use our Contact Us form or call 0800 328 3282.

Tue 13th Dec 2022

Hayley Gaffney

Associate

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