What happens when the people you trust with your affairs cannot agree? Or when family members worry about decisions an attorney is making? This guide explains how Lasting Power of Attorney disputes arise, the routes for raising concerns, and how good planning can reduce the risk of them in the first place.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that lets you (the donor) appoint one or more people (your attorneys) to make decisions for you. There are two types: one for property and financial affairs, and one for health and welfare. An LPA must be made while you have mental capacity, and it can only be used once the Office of the Public Guardian (OPG) has registered it.
Choosing your attorneys carefully
The best way to reduce the risk of a dispute is to choose your attorneys with care. So, before you decide, think about:
- whether they are trustworthy and reliable
- whether they are comfortable managing money (for a financial LPA)
- how well they understand your wishes and values
- whether they can work well with each other and with your wider family
It also helps to talk to your attorneys about your expectations while you are still able to. Many disagreements start because attorneys simply do not know what the donor would have wanted.
When attorneys disagree
Disagreements are more likely when you appoint more than one attorney. However, the effect depends on how you set up the LPA.
Jointly: attorneys must make every decision together. So, if one attorney wants to sell your house to pay for care and the other does not, nothing can happen.
Jointly and severally: attorneys can act together or on their own. This gives more flexibility, because one attorney can act even if the other is unavailable or disagrees.
You can also choose a mix, for example jointly for selling your home and jointly and severally for everything else. If attorneys cannot resolve their differences, the LPA may become unworkable. In that case, someone may need to apply to the Court of Protection, which can give directions or, in serious cases, revoke the LPA.
Objecting to an LPA being registered
Sometimes the concern is about the LPA itself. For example, someone might believe the donor lacked capacity when signing, was pressured or tricked, or chose an unsuitable attorney.
If you are an attorney or a “person to notify”, the process depends on the reason for your objection:
- for factual grounds, such as the donor or an attorney having died, you use form LPA007 and send it to the OPG
- for other grounds, such as fraud, undue pressure or an attorney being unsuitable, you apply to the Court of Protection using form COP7 and tell the OPG using form LPA008
There are time limits for objecting once notice of registration has been given. You can find the current forms and deadlines on the GOV.UK page about objecting to the registration of a power of attorney.
Challenging an attorney’s decisions
Disputes also arise once an LPA is in use. For example, family members might question:
- financial decisions, such as investments or a property sale
- care choices, such as which care home to use
- welfare decisions, such as medical treatment
First, try to raise the issue calmly with the attorney. They must act in the donor’s best interests and follow the Mental Capacity Act 2005 and its Code of Practice. If that does not work, mediation is often worth considering, because it is usually quicker, cheaper and less stressful than going to court.
An illustrative example
For example, imagine an elderly mother whose eldest son is her financial attorney. Her younger children become worried about some of his investment choices. After talking it through failed, they might agree to mediation. Through that process, the family could agree a more cautious approach and regular updates on her finances. This is a fictional example, but it shows how a dispute can often be settled without court action.
Removing or changing attorneys
Some Lasting Power of Attorney disputes are best resolved by the donor making changes. If you are the donor and you still have mental capacity, you can:
- cancel your LPA by making a deed of revocation and sending it to the OPG
- remove a particular attorney with a partial deed of revocation
However, you cannot add a new attorney to an existing LPA. Instead, you would need to make a new LPA. The wording of a deed of revocation needs care, so it is sensible to get help with it.
The role of the Office of the Public Guardian
The OPG supervises attorneys and can investigate concerns about how they are acting. As part of an investigation, it can:
- ask attorneys to provide accounts and records
- speak to the people involved
- apply to the Court of Protection, for example to have an attorney removed
Anyone can raise a concern with the OPG if they think an attorney is not acting in the donor’s best interests.
Who pays the costs of Lasting Power of Attorney disputes?
Costs in the Court of Protection depend on the type of case and how people have behaved. As a general starting point, the costs of a property and affairs case are often paid from the donor’s funds. In health and welfare cases, each side often pays its own costs. However, the court can depart from these starting points. For example, it may order someone who acted unreasonably to pay costs. So, it is important to take legal advice before starting or defending an application.
Costs can include court fees, legal representation and mediation.
Preventing disputes
Good communication prevents many Lasting Power of Attorney disputes. Attorneys and families may find it helps to:
- hold regular family conversations about the donor’s affairs
- keep clear records of decisions and the reasons for them
- be open about financial transactions
As a donor, you can also include preferences in your LPA. These help your attorneys understand what matters to you.
What if an LPA is cancelled?
If the court revokes an LPA, someone may need to apply to the Court of Protection to become a deputy. A deputy manages the person’s affairs under the court’s supervision. Deputyship is usually slower and more expensive than an LPA.
Getting help
A.D.E. Wills does not act in LPA disputes or Court of Protection proceedings. If you are involved in a dispute, we can refer you to an appropriate professional. If you would like to make an LPA, or think about your choice of attorneys, we are happy to help. Call 01865 507174, email info@adewills.co.uk, or read more about our Lasting Powers of Attorney.
