Since the Financial Times article, ‘Life Begins At Sixty – the rise of the ‘young-old’ society to Extra Time – life lessons for an ageing world by Camilla Cavendish, a veritable whirlwind of articles and books have been released focusing on how to have a wonderful life post 60.

The fact we are living longer is great, but no one can guarantee their twilight years will be healthy.  No matter how hard we exercise and regardless of the number of green smoothies we ingest, the body and the mind break down as we age.  Therefore, increasing numbers of people are choosing to have a Lasting Power of Attorney (LPA), to ensure someone of their choosing can manage their affairs if they lose mental capacity.

An LPA allows a trusted person to manage the health and welfare and/or the financial affairs of the donor (the person who instructed the LPA).  LPAs replaced Enduring Powers of Attorney (EPA) in 2007.  EPAs made prior to October 2007 are still valid.

Clients often come to us asking, “what happens if we do not think the donor fully understood what they were doing at the time they created the LPA”.  Others call us because they suspect the attorney is not acting in the donor’s best interests (as they are required to by law). 

If you are worried about your loved one’s LPA, here is what you need to know.

Can a Lasting Power of Attorney be contested?

An LPA can be disputed.  In such circumstances, the first course of action is to write to the attorney stating your concerns.  If this elicits no response, your Solicitor may try and settle the dispute through alternative dispute resolution methods such as negotiation and/or mediation.

If this course of action does not work or there are urgent concerns for the donor’s wellbeing, you can apply to the Court of Protection to have the LPA revoked.

The Court of Protection may only revoke an LPA on the donor's behalf if:

  • The donor was subjected to fraud or undue pressure.
  • The attorney has behaved, is behaving, or is proposing to behave in a way that contravenes their authority or is not in the donor's best interests.

Strong evidence will need to be produced to support either of these grounds.

In Re J (unreported), 6 December 2010, (Court of Protection) it was held that the Court’s power to revoke an LPA on the grounds of an attorney’s behaviour was not limited to their behaviour in the context of their duties under the LPA.  The Court of Protection could revoke the LPA if the attorney’s behaviour in a different capacity jeopardised the donor’s best interests.

What are the reasons to dispute a Lasting Power of Attorney?

Common reasons that an LPA is disputed include:

  • The attorney is making unauthorised or unnecessary purchases on behalf of the donor
  • The attorney wishes to sell the donor’s property
  • A decision needs to be made regarding the donor entering a care home
  • It is suspected that the donor was pressured or did not have the mental capacity to make an LPA
  • The attorney is making decisions that indirectly benefit him or her
  • The attorney is not acting in the donor’s best interests

In disputed LPA cases, who pays the costs?

The Court of Protection has a general rule that the donor’s estate pays for any costs related to an attorney dispute.  However, if the Court suspects an application has been made in bad faith or you are not acting reasonably, you could be made personally liable for any costs.

What should I do if I want to dispute an LPA or object to an attorney?

If you believe you have reasons to dispute an attorney’s behaviour, actions or inactions, contact a Solicitor.  This area of law is complex.  Additionally, disputing an LPA can lead to emotional distress and family discord.  An LPA lawyer who is experienced in this area will do everything they can to preserve family relationships while protecting the donor’s interests.

Similarly, if you become aware that your authority as an attorney is being challenged or your actions disputed, you need to seek urgent legal advice.  A Solicitor will assist you in building a defence and provide support and advice on your attorney duties and responsibilities.

Next Steps

If you require detailed legal advice about Lasting Power of Attorney or Enduring Power of Attorney disputes, please call us on 0161 941 4000