The rising average life expectancy in the UK means that more and more people are appointing someone to look after their property, health and finances when they no longer have the capacity to do so themselves.
Often, someone suffering from the early onset of Alzheimer’s or dementia will enter into a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA), appointing a relative or close friend to take control of any important decisions as an attorney. This attorney must always act in the best interests of the “donor.”
We’re helping increasing numbers of people with disputes relating to the management of a family member’s affairs, whether they’re challenging or defending decisions. It can be a distressing time, whatever the nature of the disagreement, but our solicitors are experienced in fighting for your best interests.
Can You Dispute A Power Of Attorney?
Disputes tend to happen when there’s a disagreement over whether the donor had the mental capacity to complete the LPA.
Another source of conflict is how an attorney is seen to be dealing with the donor’s affairs. Normally these disputes concern:
Whether the donor still has capacity
Spending by the attorney
Investment decisions made by the attorney
The sale and management of the donor’s property
The donor’s Will
Gifts – the attorney can only make small gifts without court approval
Settling An Attorney Dispute
We advise people who want to challenge the decisions made by an attorney, as well as representing attorneys who are defending claims by family members or third parties.
It’s often the case that disputes can be settled after a meeting between the two parties, or through mediation. The Court of Protection (a court which deals with the affairs of those who lack capacity) encourages people involved in an attorney dispute to attempt alternative dispute resolution, so it’s important to seek specialist legal advice.
This is a specialist area. Many of our lawyers are qualified mediators, helping clients to resolve power of attorney disputes with a minimum of stress.
What If An Attorney Hasn’t Been Appointed?
If the donor didn’t appoint an attorney before they lost capacity, the Court of Protection will appoint a deputy to look after their affairs, with the same powers and responsibilities as an attorney.
The court has discretion to choose a deputy but usually prefers to appoint a friend or relative (as long as they’re satisfied that it’s in the donor’s best interests to do so) rather than a complete stranger. The family member or friend will be appointed unless there is:
A need to investigate the proposed deputy’s conduct with the donor’s assets
A conflict of interest
Ongoing friction between family members which could interfere with the proper management of the affairs of the donor
A need to make sure that the donor is free from undue influence (particularly the influence of the proposed deputy)
Evidence that the proposed deputy has physically, emotionally or financially abused the donor
If the proposed deputy has a bad track record in managing their own financial affairs, this would also prevent the court from appointing them.
When there are substantial disagreements within the family, the court will sometimes appoint an independent panel deputy (often a solicitor) to manage the donor’s affairs. The court will aim to do this with the agreement of the family, to avoid unnecessary legal costs.
Who Will Pay For An Attorney Dispute?
The general rule in the Court of Protection is that the donor’s estate will pay for the objector’s costs. However, this only applies if you act reasonably at all times: if the court considers that an application has been made in bad faith, it can ignore the general rule.
If you do decide to object to the registration of an EPA or LPA, or to the actions of an attorney or deputy, you’ll need to comply with the formalities of the Court of Protection when you lodge your application. This can be quite complex, so it’s advisable to use a solicitor to do this.
As an attorney, you may have been contacted by the Court of Protection about an objection to your appointment, or to the way that you are handling the estate. Under these circumstances, it’s crucial that you take legal advice as soon as possible and almost certainly then get legal guidance to defend any action against you, and to justify your conduct so far.
"Irwin Mitchell will always be the leaders in this country; the work they do is extraordinary."
Chambers & Partners 2019
"Irwin Mitchell has outperformed my expectations in Court of Protection matters and been very supportive. The team is market-leading and would be a hard act to follow if I had to go elsewhere."
Chambers & Partners 2018
Legal 500 2017 Contact Our Power Of Attorney Dispute Solicitors
Our solicitors can provide clear and practical advice if you’re involved in a power of attorney dispute, whether you’re defending or making a claim. Call one of our experts for a free consultation on 0370 1500 100 or
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