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How To Effectively Challenge A Lasting Power of Attorney

Posted: Monday, 26 February 2024 @ 09:25

If you are not happy with the conduct of an attorney who has a Lasting Power of Attorney (property and finance), the steps you take to combat this and your prospects of success are heavily influenced by the stage at which the Lasting Power of Attorney process is.

It can be split into three phases which can broadly defined as:

i) when the LPA is first registered

ii) while the Donor(Vulnerable Person) is alive and the LPA is in operation

iii) after the Donor has died and the LPA is no longer in operation

The difference in phases provide different legal steps you use as your legal rights are not the same and also there are some nuances in what evidence you can obtain and the best methods to do so.

From experience, the critical evidence can be the ability to obtain bank statements of the Donor which the Attorney has access to(who may or may not be appropriately spending) as this is likely to be a key source of interest to you.   

Phase 1 - The Donor has just done a LPA.

By law you can object if your an attorney or ‘person to be told.(You have a 3 week deadline) 

You will have receive a letter from the donor or one of their attorneys telling you they want to register the LPA.

Your objections include if the donor or an attorney has died, the donor and an attorney were married or had a civil partnership but have divorced or ended the civil partnership, an attorney does not have the mental capacity to be an attorney, the donor or an attorney is bankrupt.

Other reasons also  include if you think the LPA is incorrect ,you do not believe the donor had mental capacity to make a LPA, there was fraud, for example, someone faked the donor’s signature or the donor was pressured to make a LPA.

More detail on the process is here.

My own take on this stage of the process is that this applies to situations to the opportunist  attorney e.g an unsophisticated individual attempting to take control of the vulnerable person's affairs.   

There is new legislation in place which is about to be implemented which targets this kind of elderly abuse and will tighten the registration process.  

Phase 2 - After the 3 week period LPA registration has elapsed.

This can kind of scenario is more governed by when you as a person who is is concerned about a LPA being in place and you think the attorney has not been behaving well.

i Write to the Attorney and lay your concerns on the table. This is normally best done in writing or by email.

ii) If that yields no joy, approach the Office of Public Guardian. The Officer of the Public Guardian is a government body that supervises deputies and attorneys. The OPG will either get involved or will not get involved. They may investigate and they may even take legal action(via the Court of Protection) and get the attorney removed. The benefit of complaining to the OPG is that the cost is nil. The weakness of complaining to the OPG is that the process can take a long time and the OPG is not necessarily guaranteed to act in accordance with your wishes.

iii) Go through the Legal Process yourself and seek to remove the Attorney. The process itself involves the Court of Protection - a court specifically established to handle matters concerning individuals who lack mental capacity. This means showing reasons for removal of attorney and obtaining supporting evidence and looking for a replacement attorney. You will need to inform the court of who you wish the new attorney to be and the application should include a COP1 form (an application form) and a COP3 form (an assessment of capacity). 

There are delays with the Court process and general property and affairs applications to the Court of Protection now take many months to get to a result.

iv) Within all of these stages you can consider mediation too with the attorney if you think there is a deal to be done.

Phase 3 - The Donor has died and the LPA is no longer in operation 

Once the Donor has died, the LPA comes to a legal end.

Unless it is a deputyship situation, the OPG is very unlikely to investigate anything after the Donor has died.

You cannot rely on the OPG to help even if you want to do so.

The defining law is probate law and your rights in this arena.

Thus effectively your objective is often to obtain bank statements of the Donor to obtain what has been happening with the Donor's finances while the Attorney had control.

The Executor(s) of the Donor's Estate has the ability to obtain those bank statements and if you are Executor you can do so or you can ask the Executor to do so.

If you have the Bank statements this is helpful as you know what has been going on.  

If the Executor and the Donor are the same,(and you do not have the statements) then it is a different ball game and you should certainly get advice as it really does get a bit more complex.