There may be circumstances where it is appropriate to challenge the appointment of an attorney or deputy.

Attorney

In relation to the preparation of a lasting power of attorney (LPA) there is no obligation on the person making an LPA to notify others, there is, however, the option to do so. If notification is received, the notified party has a limited period of time to raise their objections. While there are no set grounds for an objection, the objector must, for example, show the appointment is not in the best interests of the donor and provide evidence as to why.

Where an LPA (finance and property and/or health and welfare) is already in place, it is open to challenge subject to the circumstances. The obvious example is where an attorney is in breach of their duties and, for example, is abusing their position by using the protected party’s funds as their own. In these circumstances, the initial step is to report concerns and request an investigation via the Office of the Public Guardian. It is important to seek legal advice at an early stage to ensure all possible steps are taken to preserve the estate and prevent the loss of any further funds. Assuming the donor does not have capacity to revoke the LPA, the Court of Protection has the power to revoke an LPA but only if fraud or undue pressure was involved to make the LPA or the attorney has or is behaving contrary to the donor’s best interests.

It is also possible to challenge someone’s ability to execute an LPA, for example, if they had lost the required capacity before seeking to do so. In these circumstances, the Office of the Public Guardian could conduct an investigation, which would often be supported by evidence of the lack of capacity. The required capacity to execute an LPA is that someone must understand:

• The effect of the LPA
• Who the attorneys are
• The scope of the attorneys’ powers and that there are restrictions on the
• exercise of those powers
• When the attorneys can execute their powers
• The scope of the assets the attorneys can deal with under the LPA
• That they have the ability to revoke the LPA if they have the required
• capacity to do so
• The benefits and risks of executing and not executing the LPA

Deputy

On making an application to appoint a deputy, there is a requirement to notify at least two people. As above, there are no set grounds for an objection, any objection should however consider the Mental Capacity Act 2005, the best interests of the donor and provide evidence in support of the objections made. On receipt of legitimate objections to the appointment of a deputy, it is normal course of the Court of Protection to list a dispute resolution hearing. This requires all parties to file witness statements and evidence in support of their respective positions.

For professional legal advice on challenging the appointment of an attorney or deputy, call JMW today on 0345 872 6666, or complete our online enquiry form to request a call back from a member of our highly qualified team.