LPAs: How to prevent a loved one entrusting their affairs to the wrong person27 Nov 2020 | Katie de Swarte
Record numbers of us are entrusting our finances to loved ones, with over 800,000 Lasting Powers of Attorney (LPA) registered a year according to the Office of the Public Guardian (OPG). We should all want our relatives to have someone who is able to make decisions for them if they are unable to manage their own affairs, but what if they make a poor choice?
Experts at London law firm Osbornes Law often hear from worried relatives concerned that a family member has chosen the wrong person to take care of their finances and fear that their affairs will be mishandled or worse, they will be taken advantage of.
Katie de Swarte, a lawyer specialising in will, trust and LPA disputes at Osbornes Law, says: “We regularly see family members, who are concerned about a relation who has registered an LPA naming another family member who they consider either untrustworthy or unable to effectively handle their parent’s affairs.
“The most common cases are where one sibling believes another is acting inappropriately, perhaps because they have noticed spending on unnecessary items or there are poor or questionable decisions being made, such as wanting to sell or transfer the family home when that is unlikely to be in the best interests of the parent.
“Occasionally we see someone outside the family, a cleaner or perhaps a carer being appointed as attorney and the family becomes concerned their relative is being taken advantage of.”
A financial and property LPA gives the attorney the ability to buy or sell property, manage bank, building society and other financial accounts, handle welfare benefits or tax credits, tax affairs, debts and legal proceedings. It can come into force once the individual lacks capacity or earlier if they want help with day to day running of their affairs, as long as they consent.
When an LPA is registered, as a safeguarding measure up to five people can be named, usually family members, who will be informed of the application. This is an opportunity to raise objections within 28 days with the OPG and Court of Protection. If the objection has merit, they can stop the registration of the LPA or arrange a hearing to discuss objections.
Those who choose not to inform anyone about their LPA will need two certificate providers (this can be a friend or a colleague who has known them for at least two years or a professional such as a GP or solicitor) to confirm they understand the purpose of the LPA and that they are not being pressurised. In this situation relatives may not become aware that their loved one has made an LPA.
Katie explains, “Family members should be notified, unless there is good reason not to do so but this doesn’t always happen, particularly if forms are completed without legal advice.”
Once an LPA is registered, it cannot be revoked by anyone but the individual who made it or by the court. At this stage relatives concerned about an attorney will need to raise this with the OPG.
Katie says, “Worried relatives can report the attorney to the OPG who will investigate. They may conclude there is no evidence to suggest inappropriate conduct but if they agree, they can provide written instructions to the attorneys to follow, failing which further action could be taken, or take interim action such as freezing bank accounts and requesting the attorney account for their actions. Ultimately the OPG can apply to the Court of Protection to revoke the LPA or put in place any other order they deem appropriate.”
Relatives still unhappy with the outcome of these investigations can go the Court of Protection who will want to see evidence supporting any claims made.
The Court then has the power to appoint a deputy to take over from the attorney. Deputies are subject to a higher level of supervision than attorneys under an LPA and will be required to complete an annual report to the OPG to check that decisions are being made in the best interests of the individual.
Katie recommends attempting to resolve the situation without involving the courts where possible.
She says, “Disputes involving family members can be very emotional especially where family members vent longstanding grievances and relatives are falling out with each other. The situation can escalate but it’s important to recognise that disputes can be costly and if the court is forced to appoint a deputy they may well choose an independent deputy, such as a solicitor.
“Where there are capacity issues or families at loggerheads it is likely a solicitor will become involved to act for the donor, whose costs will also have to be met. Efforts should always be made to try and agree matters which can avoid court proceedings altogether or in the least shorten them.”
Katie recently advised on a case where there were concerns about the attorney and as a result the man concerned revoked his LPA and made a new one. When notified, however, the old attorney objected on the grounds that the man lacked capacity.
Katie explains, “This resulted in Court of Protection proceedings to decide whether a Deputyship Order should be made. It was a really difficult time for the family and for the donor himself who suffers with dementia. The priority was to act in his best interests.”
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