Lasting Power of Attorney Disagreements

Resolving a Lasting Power of Attorney dispute

A Lasting power of attorney (LPA) allows trustees to make decisions on behalf of an individual who lacks mental capacity. When a dispute arises it is important to seek legal advice in this complex area of law. Our specialist solicitors can advise on all areas of LPA disputes and challenges.

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What are Lasting Power of Attorney disputes?

Lasting Power of Attorney disputes involve disagreements where an individual has a Lasting Power of Attorney (LPA) in place.

An LPA is a legal document executed by an individual handing power to one or more attorneys to make decisions about the individual’s health and welfare or their finances. Usually, the power is used once the individual has lost mental capacity to make such decisions themselves, however, it can be used before with permission from the individual.

An LPA must be registered with the Office of the Public Guardian (OPG) before the individual has lost capacity. This enables the attorneys to exercise their powers in assisting the individual.

Typically, an individual will appoint close, trusted family members as their attorneys. However, human nature is such that where people are involved, there is the risk of arguments and disagreements. The risk can be greater in the case of high net worth individuals and in complex cases.

Examples of  disputes that can arise are where:

  • The attorney is not suitable;
  • The attorneys disagree on where the individual should live or what medical treatment they should have;
  • The attorneys have different views on how to spend or invest the individual’s money;
  • The relationship between attorneys may break down and they can no longer make collective decisions if required to do so under the LPA;
  • An attorney may be inappropriately dealing with the individual’s assets, such as stealing or dissipating  the individual’s funds;
  • The attorney may not be acting in the individual’s best interest generally.

The above list is not exhaustive but where there is concern as to the conduct of an attorney or the creation of an LPA assistance from specialist Lasting Power of Attorney disputes solicitors is vital because reporting of such concerns to the the OPG may lead to the matter being transferred to the   Court of Protection.

To speak with a lawyer who specialises in LPA disagreements and challenges contact us today. You can call us or fill in an online form and we will contact you.

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    What is the Court of Protection?

    The Court of Protection is a specialist court in England and Wales. Its role is to safeguard individuals who lack mental capacity to make their own decisions about money, health and welfare. Its key function is to decide on disputes and make decisions on behalf of the individual who lacks capacity.

    The Court of Protection also makes deputyship orders in respect of individuals who have lost their capacity to make their own health, welfare and financial decisions where no LPA exists. A deputyship order appoints someone as deputy with power to make decisions on the individual’s behalf.

    Local authorities can also start actions in the Court of Protection to protect the health and welfare of an individual in their care who lacks capacity and may be at risk.

    How do Lasting power of attorney disputes solicitors at Osbornes Law help?

    Any dispute concerning someone who is unable to make their own decisions on such important matters as their healthcare and finances can be emotive and distressing.

    Our solicitors understand this – we spend valuable time looking at the nature of the relationships involved. Most importantly, we consider the needs and bests interests of the individual – including deciphering what decision they would likely have made had they been mentally capable of deciding for themselves.

    This approach means it may be possible to resolve the dispute without needing to take court action. Sometimes, reporting concerns to the Office of the Public Guardian will be enough. In other cases, mediation between the parties can resolve the issues without further action becoming necessary.

    Disputes we can help with include:

    • Challenges to an LPA –  Anyone can object to an LPA being registered. You can object if, eg you believe the individual did not have capacity to make the LPA or it was executed fraudulently or under duress;
    • Disputes between attorneys – There may be a breakdown between the attorneys, such that they cannot be expected to make collective decisions for the incapacitated person.
    • Financial abuse – Where it is suspected an attorney has misappropriated the individual’s money or dealing with assets inappropriately or the court can be asked to intervene.
    • Challenges to a deputyship order – A deputy must act in the best interests of the individual who lacks capacity. If they don’t, the Court of Protection can be asked to revoke the order and appoint a different deputy. There can also be challenges to deputyship applications and who is being suggested to act as deputy.
    • Challenges around capacity – Disagreement may arise where it is disputed that the individual actually lacks capacity. In these cases, the Court of Protection may request a jointly appointed expert to assess capacity before making its decision.
    • Arguments relating to payments or gifts – Attorneys and deputies must account to the Office of the Public Guardian for the way they act and spend the individual’s money. Sometimes, disputes can arise around payments made and the Court may be asked to validate such a payment.
    • Specific Issue/Emergency applications – applications on a single issue can be made to the Court of Protection or in emergency situations where an individuals life of welfare is at risk.

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    Initiating a dispute

    The process of disputing a Lasting Power of Attorney claim or making (or responding) a Court of Protection application can be complex and it will begin with gathering the necessary background information.

    We will need to see the original LPA or deputyship order and any evidence you can bring to support your side of the dispute or concerns. We will use this information to help inform the best way forward to build the strongest possible case.

    How much will it cost me?

    Taking Court of Protection action where the dispute is over the protected party’s finances will involve legal costs. However, usually, a significant proportion of these will be recoverable from the protected party’s own funds.

    If the dispute concerns their health and welfare, or court action is not required, we will discuss the legal costs with you at the outset so that you know where you stand.

    What are the time limits for bringing a claim?

    This depends on the nature of the dispute. If you are simply objecting to the registration of an LPA, you have just 3 weeks.

    In most other LPA and Court of Protection disputes, proceedings should begin within six years of the date of knowledge that there is a claim (except in the case of fraud or duress). It is best to act as soon as any concerns arise.

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