How to Challenge Power of Attorney

Lasting Power of Attorney: an overview

Power of Attorney is a legal document designed to let someone keep control over their lives, even when they lack the mental capacity to do so.

An attorney is the person, or people, appointed by someone to help them make decisions and act on behalf when they can no longer look after themselves.

There are two kinds of Power of Attorney: the temporary Ordinary Power of Attorney and the long-term Lasting Power of Attorney (LPA).

You’ll find two kinds of LPA, giving an attorney the power to manage Property & Financial affairs or Health & Welfare affairs.
 

Who can strip power from an errant attorney?

• The donor

The person who made the Power of Attorney (known as the donor or principal) has total control. They can revoke an LPA at any time for whatever reason, assuming they have the mental capacity to do so.

When making a Power of Attorney, it’s possible to state an end-date. This would most commonly be used in an Ordinary Power of Attorney – ideal for short stays in hospital or if you’re briefly travelling abroad – when the attorney is aware it’s a temporary arrangement.

The donor will also be notified if someone makes an LPA on their behalf. They will then have three weeks to object.

But an attorney under a Lasting Power of Attorney (LPA) can also be discharged of their duties.

There are two ways to do this:

• Send a Deed of Revocation – a revocation notice must be sent to the attorney and to the Office of the Public Guardian.
• Send a Deed of Partial Revocation – this lets someone remove one named attorney from an LPA, without affecting the rest of the document, including the other named attorneys. You can include up to 4 attorneys.

Remember: Making a new LPA doesn’t automatically cancel out an old one, as the Office of the Public Guardian must be notified of any changes.

However, if a Power of Attorney is later challenged in court, it might be argued that the most recent document best reflects the wishes of the donor. In other words, it could get messy. In this situation, a solicitor will be able to advise.
 

• The attorney

An attorney is under no obligation to act in that capacity. They may stand down at any time. This is known as ‘disclaiming the appointment’.

At this point, a back-up attorney, already named in LPA, can take over. When no other attorneys are named, the donor may wish to make a new LPA.

If the donor lacks the capacity to do so, a relative or close friend should apply for a Court of Protection deputyship order.

Deputyship offers some of the powers an attorney has, but it’s more time-consuming, expensive and more restrictive, which is why making an LPA early and choosing the right attorney are so important.

Attorneys must also meet certain standards set by the legal system.

For example, if a property & financial attorney falls bankrupt, they automatically lose power of attorney, as they would have proved unfit to discharge their financial duties.
 

• Anyone notified about an LPA registration

If you're concerned about the actions of someone's attorney, you have several options.

When a donor makes an LPA, they must notify certain people, like their attorney. They don't have to tell anyone else, but it’s generally encouraged to discuss it with loved ones and keep them informed.

Assuming you’ve received a letter informing you of an LPA registration, and you object to the LPA, you can dispute it on two grounds:


Factual objections such as:
 

• The donor or attorney has passed away
• The donor and attorney separated after the LPA was made
• The attorney lacks mental capacity
• The donor or attorney are bankrupt

To make a factual dispute, you must complete objection form LPA007 within 3 weeks of the registration notice.
 

Prescribed objections such as:
 

• The LPA is fraudulent or written under duress
• The donor may not have had mental capacity when making the LPA
• The LPA was previously revoked by the donor
• The attorney isn’t acting in the donor’s best interests

To object on prescribed grounds, you must complete objection forms LPA008 and COP7.

You will need evidence to prove your claims, which may then be investigated. During this time, you and the other party are offered mediation with an independent mediator, where you’ll talk through the dispute and see if a resolution is possible without going to court.
 

• Any other concerned party

You can still object to an LPA, or dispute the actions of an attorney, even if you weren’t originally notified.

To do this, you’ll need to send form COP1 to the Court of Protection. This costs £365, although you may get a discount if you receive certain benefits.
 
Once your objection is received, the courts will let you know its decision.
 

Get legal help

Disputing someone’s Power of Attorney is a serious step – after all, the purpose of an LPA is to let the donor live their life their way.

If you’re trying to protect someone you love from an alleged abuse of authority, talk to a solicitor to find out the best way to help. The Law Superstore lets you find and compare solicitors near you who can support your legal challenge to keep your loved one’s best interests at heart.