Have you ever wondered what happens when those entrusted with your affairs can’t agree? Or perhaps you’re concerned about the decisions being made on your behalf? This guide will walk you through the complexities of Lasting Power of Attorney (LPA) disputes, offering practical advice and insights.
What is a Lasting Power of Attorney?
Before we dive into disputes, let’s clarify what an LPA is. A Lasting Power of Attorney is a legal document that allows you (the donor) to appoint one or more people (attorneys) to make decisions on your behalf if you become unable to do so. There are two types: one for financial decisions and one for health and care decisions.
Choosing Your Attorneys Wisely
The best way to avoid disputes is to choose your attorneys carefully. Consider these factors:
1. Trustworthiness and reliability
2. Financial acumen (for financial LPAs)
3. Understanding of your wishes and values
4. Ability to work with others
It’s also wise to have open discussions with your chosen attorneys about your expectations and preferences while you still have the capacity to do so.
When Attorneys Disagree: What Happens?
Disagreements can arise, especially if you’ve appointed multiple attorneys. The impact depends on how you’ve set up your LPA:
1. Jointly: If attorneys must act together, a disagreement can immobilise decision-making. For example, if one attorney wants to sell your house to pay for care and another disagrees, no action can be taken.
2. Jointly and Severally: This allows attorneys to act together or individually, offering more flexibility. In our house-selling scenario, one attorney could proceed with the sale.
If attorneys can’t resolve their differences, the LPA may become unworkable, and the Court of Protection might cancel it.
Contesting an LPA: Grounds and Process
Sometimes, concerns arise about the validity of an LPA. You might contest an LPA if:
1. You believe the donor lacked mental capacity when creating it
2. You suspect undue influence or fraud
3. You think an attorney is unsuitable
To object to an LPA’s registration as an attorney or ‘person to be told’:
1. Fill out an LPA007 form, or LPA008 and COP7 (available on the gov.uk website)
2. Send this to the OPG
Challenging an Attorney’s Decisions
Disagreements about an attorney’s actions are common. Family members might question:
– Financial decisions (e.g., investments, property sales)
– Care choices (e.g., selecting a care home)
– Personal welfare decisions (e.g., medical treatment)
If you’re concerned, first try to discuss the issue with the attorney. If that fails, consider mediation. The Court of Protection encourages alternative dispute resolution before formal legal action.
Case Study: The Johnson Family Dispute
The Johnsons faced a difficult situation when their mother’s financial attorney, her eldest son, began making questionable investment decisions. The younger siblings were worried about their mother’s financial security. After failed attempts to resolve the issue directly, they sought mediation. Through this process, they agreed on a more conservative investment strategy and regular family meetings to discuss financial decisions.
Removing or Changing Attorneys
If you’re the donor and still have mental capacity, you can:
1. Cancel your LPA by sending a ‘deed of revocation’ to the Office of the Public Guardian (OPG)
2. Remove a specific attorney with a ‘partial deed of revocation’. If you want to add another attorney you need to end your LPA and make a new one.
The wording for these documents must be precise, so it’s advisable to seek legal help.
The Role of the Office of the Public Guardian
The OPG oversees LPAs and can investigate concerns about attorneys’ conduct. They can:
1. Require attorneys to provide financial accounts
2. Interview people involved
3. Apply to the Court of Protection to remove attorneys if necessary
Costs of Disputes
Generally, the donor’s estate covers reasonable costs of LPA disputes. However, if the court finds an objection was made in bad faith, the objector might have to pay.
Costs can include:
– Court fees
– Legal representation
– Mediation services
Preventing Disputes: Communication is Key
Regular communication between donors, attorneys, and family members can prevent many disputes. Consider:
1. Annual family meetings to discuss the donor’s affairs
2. Keeping clear records of decisions and reasoning
3. Being transparent about financial transactions
What If an LPA is Cancelled?
If an LPA is cancelled due to disputes, alternative arrangements for managing the donor’s affairs may be necessary. This might involve applying for deputyship through the Court of Protection.
Seeking Help
Navigating LPA disputes can be complex. Don’t hesitate to seek professional advice.
Contact us on 01865 507174 or at info@adewills.co.uk to discuss your situation. Whilst we cannot help with resolving any conflicts, we can refer you to a team of friendly solicitors who can. Remember, early intervention often leads to better outcomes for all involved.
By understanding the potential pitfalls and knowing how to address them, you can ensure that your LPA serves its intended purpose: protecting your interests when you’re unable to do so yourself.
