A Lasting Power of Attorney or LPA appoints someone to act for an individual in the event that they lose the mental capacity to deal with their own affairs. We take a look at what action is possible if you have concerns over an LPA or the behaviour of an attorney.
Anyone can make a Lasting Power of Attorney. This is a legal document which gives one or more attorneys the authority to deal with matters on your behalf, should you ever become unable to manage them yourself.
There are two types of Lasting Power of Attorney:
- Property and financial affairs LPA; and
- Health and welfare LPA
You can make one or both. A property and financial affairs LPA can be used at any time after it has been signed and registered, even if the person making the LPA (the donor) still has mental capacity. A health and welfare LPA can only be used if the donor has lost mental capacity.
The role of an attorney under an LPA
One or more attorneys can be appointed under either type of LPA. Where more than one attorney is appointed, the donor needs to specify whether they can each act independently or whether all decisions must be agreed on by all attorneys.
An attorney appointed to deal with property and financial affairs can deal with matters such as:
- Managing bank accounts
- Making investments
- Receiving pension payments and benefits
- Paying bills
- Insuring and maintaining the donor’s home
- Making some limited cash gifts on behalf of the donor
- Selling the donor’s property, should this be necessary
An attorney appointed to deal with health and welfare will deal with issues such as:
- Where the donor will live
- What their daily routine will look like
- Who they will see
- What medical treatment they will receive or what will be refused on their behalf
Attorneys are legally required to act in the best interests of the donor at all times. There are other rules in respect of their conduct, including:
- The attorney should keep the donor’s money separate from their own
- The attorney cannot gift money to people except in limited prescribed circumstances
- The attorney cannot benefit themselves from their position, to include buying something from the donor below its value or without the consent of the Court of Protection
Who will be notified when someone makes an LPA?
The donor will decide at the time that they sign the LPA who is to be notified. They can include a list of people to be told on the LPA form and these individuals will be notified by the Office of the Public Guardian (the OPG) when the LPA has been submitted for registration. Once the document has been registered, the attorney(s) can use it as legal authority to act on behalf of the donor.
Relatives of the donor will not be notified unless they are included on the list. Attorneys will know that they have been appointed and are also required to sign the LPA at the time that it is made.
Objecting to an attorney
Individuals who are notified that registration of an LPA is pending have three weeks in which to raise an objection. This is possible on the basis of certain facts only.
Objections to the attorney can be raised if:
- The donor or the attorney has died
- The donor and the attorney were married and have now divorced
- The attorney does not have mental capacity
- The attorney does not wish to take on the role or wishes to stop
- The donor or the attorney is bankrupt
Objecting to an LPA
If an LPA has been made, it may be possible to raise an objection if:
- The LPA is legally incorrect or the donor’s signature was forged
- You do not think that the donor had sufficient mental capacity to understand the implications of signing an LPA
- You do not believe that the attorney is acting in the best interests of the donor
- The donor was unduly influenced or pressured into signing the LPA
- The LPA has been cancelled by the donor
You will need to provide evidence to support the basis of your objection.
Your concerns will need to be raised with the Office of the Public Guardian, which oversees the running of LPAs. It has the power to launch an investigation into the attorney’s actions, including sending a court officer to visit them.
Where wrongdoing is established, the OPG can remove an attorney. They also have the option to take action against in the attorney and, where appropriate, can cancel an LPA.
If you would like to speak to one of our expert estate planners, ring us on 01634 353 658 or email us at [email protected]