A Lasting Power of Attorney (LPA) enables a person to make important decisions on behalf of another person , particularly when they lack mental capacity. There are two types of LPA; one for property and financial affairs and another for health and welfare. These documents are intended to ensure that the donor’s wishes are respected and that their interests are protected if they can no longer make decisions themselves.
However, not all LPAs are created or used appropriately. Challenging a Lasting Power of Attorney is a legal process that may be necessary if there are concerns about the way it was made or how it is being used. AFG Law outlines when and how an LPA can be challenged under the law in England and Wales.
AFG Law has a team of experienced private client and dispute resolution solicitors who can assist with all aspects of Lasting Powers of Attorney. If you would like to speak to one of our specialists for legal advice regarding challenging a Lasting Power of Attorney, please get in touch with us today.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney allows a donor to choose one or more attorneys to make decisions on their behalf. The property and financial affairs LPA allows attorneys to manage things like bank accounts, bills, and property. The health and welfare LPA covers decisions such as medical treatment, care arrangements, and moving into a care home.
The donor must have had mental capacity at the time of making the LPA. If the donor lacked mental capacity, the LPA is not valid. The document must also be signed correctly, include a certificate provider confirming the donor was not pressured, and be registered with the Office of the Public Guardian (OPG) before use.
Can a Lasting Power of Attorney be Challenged?
A Lasting Power of Attorney can be challenged either before or after it is registered with the Office of the Public Guardian. There are two broad types of objections, based on either factual objection or objection on prescribed grounds.
A factual objection might include situations where:
- The attorney has died
- The attorney has become bankrupt (only relevant for property and financial affairs LPA)
- The donor or an attorney was married or in a civil partnership but this relationship has since ended
- The attorney is otherwise unable to act
Prescribed grounds for objection usually involve more serious concerns, such as:
- The donor lacked mental capacity when making the LPA
- The donor was pressured or coerced into making the LPA
- The attorney is acting against the donor’s best interests
- The LPA was forged or fraudulently created
- The attorney is unsuitable due to past behaviour or financial misconduct
How to challenge a Lasting Power of Attorney Before Registration
If someone is concerned about a lasting power of attorney that is in the process of being registered, they may receive a letter from the Office of the Public Guardian notifying them of the registration. This is usually sent to a person to be notified, which the donor can name in the LPA.
If there are concerns at this stage, an objection can be made using the Objection Form LPA007. This form should be sent to the Public Guardian with the relevant details and any supporting evidence.
Factual objections can be made directly to the OPG. However, if the objection is on prescribed grounds, an application must be made to the Court of Protection. The court will consider the case and decide whether the LPA should be registered.
How to Challenge a Lasting Power of Attorney After Registration
If the Lasting Power of Attorney has already been registered and is in use, concerns may arise about how the attorney is acting. For example, they may be failing to consult with the donor, mismanaging money, or making decisions that are not in the donor’s best interests.
In these cases, concerns should be raised with the Office of the Public Guardian. The OPG has powers to investigate attorneys and can apply to the Court of Protection if they believe action should be taken. The court may:
- Cancel the Lasting Power of Attorney
- Remove an attorney
- Appoint a deputy to take over decision-making
- Provide guidance or specific directions to attorneys
In serious cases, the attorney may face civil or criminal proceedings if they have caused harm or committed fraud. Our dispute resolution team can assist in challenging a Lasting Power of Attorney after it has been registered.
Who can Challenge a Lasting Power of Attorney?
Challenges can be made by anyone who has a legitimate interest in the donor’s welfare. This includes family members, friends, healthcare workers, solicitors, and others who are close to the donor. The public guardian may also raise concerns if they receive complaints or detect irregularities during a routine review.
Evidence Required
When challenging a Lasting Power of Attorney, the person raising the concern will need to provide evidence. If the challenge is based on the donor lacking mental capacity at the time of signing, medical records or expert reports may be needed. If the donor was pressured, statements from witnesses or other supporting evidence will be important.
Likewise, if the attorney is acting inappropriately, bank statements, reports from care providers, or communication records might support the case.
Effect of Divorce or Civil Partnership Dissolution
If the donor and the attorney were married or in a civil partnership, and the relationship has since ended, this can affect the validity of the Lasting Power of Attorney. In most cases, the appointment of the attorney will be revoked unless the donor specified otherwise in the document. This is one of the situations where a factual objection may be raised.
The Role of the Court of Protection
The Court of Protection is the specialist court that deals with issues relating to people who lack mental capacity. It has the authority to make decisions about Lasting Powers of Attorney, rule on disputes, and protect vulnerable individuals.
Anyone applying to the Court of Protection will need to submit relevant forms and pay an application fee. Legal advice is recommended, especially in more complex or contested cases.
Safeguards in Place
There are various legal safeguards to help ensure Lasting Powers of Attorneys are used properly:
- A certificate provider must confirm the donor had mental capacity and was not under pressure
- Attorneys must follow the Mental Capacity Act 2005 and always act in the donor’s best interests
- The OPG monitors LPAs and investigates concerns
- Certain people can be notified before registration, giving them a chance to object
These safeguards are designed to reduce abuse, but if something goes wrong, there are clear legal routes to challenge the Lasting Power of Attorney.
How can AFG Law Assist?
At AFG Law, our solicitors can guide you through the process of challenging a Lasting Power of Attorney if there are grounds to do so. We can provide expert guidance on:
- Setting up and Registering an LPA
- Objecting to the registration of an LPA
- Suspicions about the Illegal use of an LPA
- Acting as professional attorneys
- Advice on ‘Enduring Power of Attorney’
- Court of Protection Deputyship applications
For professional guidance on all matters related to Lasting Power of Attorney, please get in touch with our team today via email at PrivateClientDept@afglaw.co.uk or speak to one of our experts on the phone at 01204 920109.
Get in touch with our knowledgeable team today to find how we can help you.