We spoke with Consultant Solicitor John Gorner about LPA disputes and removing an Attorney or Deputy
What is a Power of Attorney?
A Lasting Power of Attorney (“LPA”) is a legal document by which an individual appoints one or more people to make legal decisions on their behalf, should they be unable to do so themselves. It is one of several types of power of attorney. There are other types of Power of Attorney, for example an old-style Enduring Power of Attorney.
The person may lose the ability to make their own decisions for one of a number of reasons, for example due to an accident, a physical or mental illness or a natural deterioration in health resulting in a lack of mental capacity.
Different types of LPA
There are two types of LPA; one for decisions relating to health and welfare, and one for decisions regarding property and finances.
A health and welfare LPA grants the attorney control over issues such as consent for medical procedures or the application of specific medicines, choice of care facility and so on.
A property and finance LPA grants the attorney access to bank accounts, control over funds and trusts, as well as the power to make important financial decisions for example regarding buying, selling or letting a property or taking loans secured on a property.
If a person loses capacity without having appointed an attorney, an application will need to be made to the Court of Protection; the Court will appoint someone to make decisions and take steps on their behalf, by making a deputyship order. The appointed person by the order is referred to as a Deputy.
What can go wrong?
A multitude of conflicts and disputes can arise. The most common involve disagreements between the attorney or Deputy and family members over financial matters such as:
- Use of the individual’s money by the attorney or Deputy;
- Payment of care home charges;
- Use of the individual’s money for the attorney’s personal expenses;
- Occupation of the individual’s home;
- Maintenance of the property;
- Payment of medical bills, and so on
Attorneys are legally required to ensure that they act within the scope of the powers conferred on them by the power of attorney. A Deputy must act in accordance with the deputyship order issued by the Court of Protection.
An attorney or Deputy must also take into account the preferences and instructions of the donor. They may be able to communicate such wishes, or may have communicated them either prior to or after losing capacity. Either way, the appointed individual must act in their best interests when making decisions on their behalf. Every effort must also be made to take into account their wishes and feelings at the time the decision is being considered.
An attorney for property and finance is legally obliged to justify the use of the individual’s funds. Any improper or unauthorised expenditure could result in an investigation and/or an application to the Court of Protection, for example for the Attorney to be removed.
An attorney for health and welfare is also legally required to justify healthcare decisions, for example, a decision to move the individual from their home into a care or nursing home.
In the event of significant safeguarding concerns or elder abuse, the involvement of the police and/or social services authority is sometimes necessary. At Slater Heelis we have significant experience of dealing with such matters, both on behalf of the complainant and those facing such complaints.
On what grounds can you remove an Attorney?
Welfare Concerns
If you feel that an attorney is doing an inadequate job, are concerned for the individual’s welfare at the hands of the attorney or have concerns regarding elder abuse, you may consider taking legal action.
The first step is to take legal advice. Thereafter it may be necessary for an application to be made to the Court of Protection. For example, you may feel that you, another family member or trusted family friend could perform the role more successfully, with a better understanding of the individual’s wishes. The Court will decide the matter after considering all relevant documentary and witness evidence.
Abuse of Position
If there is a suspicion that an attorney or Deputy has abused their position, a referral may be made to the Office of the Public Guardian (“OPG”). The OPG can investigate the matter and consider whether the attorney or deputy should carry on in their role.
Following an investigation, it may be necessary for the OPG to make an application to the Court of Protection for the matter to be considered and any relevant orders made. The OPG can involve the police and social services authorities in appropriate cases.
How we can help
We provide expert legal advice and guidance to those who believe an attorney or deputy is misusing their power. Should you have concerns about the conduct of an attorney or deputy, or be subject to investigation or legal proceedings yourself, our experienced solicitors can help.
We are also able to assist attorneys who are facing a claim raised by family members or third parties, and can also help you to address any concerns raised by the OPG.
Whether you are challenging a deputyship application or are facing an investigation yourself, you can count on Slater Heelis to provide the practical support and clear guidance you will need throughout the process.
We have considerable experience of dealing with the OPG, the Court of Protection, healthcare authorities and the police and social services.
At Slater Heelis we also recognise the importance in this type of matter of alternative dispute resolution (“ADR”) which is a way of settling a dispute without going to Court, or narrowing the issues for the Court to consider, thus saving time and money and reducing the stress of dealing with these difficult issues. Our solicitors are highly experienced in ADR and are often brought in by specialist support teams, social services and even the police to resolve cases.
If you would like to speak to one of our solicitors Contact us on 0161 969 3131 or fill in our contact form and we’ll be in touch as soon as possible.