Lasting Power of Attorney Disputes: An Overview
What happens if LPA attorneys disagree? Can you contest a lasting power of attorney? Can I remove an attorney from my LPA?
This article answers the important questions relating to what is to happen and how to deal with situations where attorneys under a lasting power of attorney disagree with one another.
An LPA is a very important legal document and the decision as to whom you choose to be your attorneys should not be taken lightly.
Whilst attorneys must abide by principles in the Mental Capacity Act Code of Practice to act in your best interests, there are sometimes occasions when attorneys may not be able to act together or seemingly do not act in your best interests.
This article outlines the possible courses of action to take where attorneys dispute or where someone wishes to challenge the LPA.
What happens if LPA attorneys disagree?
This is applicable where you have chosen your attorneys to make decisions jointly. This is because, for the decision to be made, the attorneys must act unanimously and as a single unit.
If one attorney disagrees with the decision, then the proposed course of action cannot be made.
If the attorneys cannot work together on joint decisions, the LPA will not work and may be cancelled by the Court of Protection.
This is why choosing for LPA attorneys to act jointly and severally is more common, as it offers flexibility by allowing the attorneys to act together or individually.
Can you contest an LPA?
Disputes can arise where there is a disagreement over whether the donor had the required mental capacity at the time of making the LPAs.
If you decide to object to the registration of an LPA, and you are not the donor, attorney or ‘person to be told’, you must fill in an objection form, copy it and send both the original and the copy to the Court of Protection.
The application fee is £365 (at the time of writing).
Can you challenge an attorney’s decision under an LPA?
Other causes of dispute involve the attorney’s conduct with the donor’s affairs, such as their spending and investing of the donor’s property, or decisions over nursing care, the donor’s Will and gifts.
In some cases, family members of the donor may disagree with the decisions taken by the attorneys under the LPA. In these instances, they should seek specialist legal advice.
A meeting, or mediation, between the parties is usually the most effective means of voicing the views of both sides. The Court of Protection encourages people involved in an attorney dispute to attempt alternative dispute resolution, so it is essential to seek specialist legal advice.
Can you remove an attorney from your LPA?
An attorney can no longer act if you cancel your LPA. You can end your own LPA by sending a written statement known as a ‘deed of revocation’ to the Office of the Public Guardian. The wording must be very specific and we can help you draft this.
If you simply wish to just remove a person from your LPA, you can make a partial deed of revocation. Again, we can help you draft this deed.
You must tell your attorney(s) that you are ending their responsibilities within your LPA.
Who pays for an attorney dispute?
The general rule in the Court of Protection is that the donor’s estate will pay for the objector’s costs. However, this only applies if the objector acts reasonably at all times: if the court considers that an application was made in bad faith, it can ignore the general rule.