Power of Attorney Disputes
A lasting power of attorney is a legal document which allows a donor to appoint an attorney to help them make financial and welfare decisions. If there comes a time where the donor lacks mental capacity, the attorney will be legally permitted to arrange their welfare, health, and finances through the lasting power of attorney.
Matters related to power of attorney tend to give rise to disputes, and when such disputes arise, these can sometimes be difficult to manage. If you need support, our power of attorney dispute solicitors can help you, covering matters such as:
- Disputes regarding the donor’s mental capacity
- Disputes regarding handling of the donor’s affairs
- Settling disputes with mediation
- Removing an attorney
Get in touch with our power of attorney disputes solicitors in Sidcup, South East London
Our solicitors can expert provide legal advice and support with power of attorney disputes. To discuss your case with one of our experts today please get in touch with our legal team at Nelson Guest.
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How our power of attorney disputes solicitors can help
Disputes regarding the donor’s mental capacity
It is not uncommon for disputes to arise regarding a donor’s mental capacity. According to the law, a donor must have sufficient mental capacity when setting up a lasting power of attorney.
If their loved ones feel that they did not have the mental capacity required to create the LPA, they may challenge the LPA and its validity. If this applies to your situation, our solicitors can offer legal support and guidance.
Disputes regarding handling of the donor’s affairs
Under some circumstances, disputes may arise with regard to the handling of the donor’s affairs. For instance, if the attorney is not acting with the donor’s best interests in mind, and or has breached their duty of care.
If you are concerned that your loved one’s attorney is mishandling their affairs, is not fulfilling their duties, or is guilty of misconduct, our solicitors can support you to dispute a power of attorney, whether through ADR processes, or in Court.
Settling disputes with mediation
In some situations, it may be possible to solve power of attorney disputes using mediation processes. Such methods involve the attorney(s) and other interested parties meeting in the presence of a trained mediator.
All parties involved will have the opportunity to voice their concern and the mediator will attempt to guide them towards a mutually acceptable resolution, while remaining unbiased. Not all cases will be suitable for mediation, our lawyers can offer more advice on this after an initial assessment of your case.
Removing an attorney
Where the attorney is unsuitable for the role, has mishandled the account, or breached their duty of care, it may be necessary to remove them. In some circumstances, it may be necessary to remove an attorney because the donor did not have mental capacity when they created the LPA, or because they were pressured into making the LPA.
Whatever the circumstances, if you need to remove a power of attorney, our solicitors can offer you full support to do so.
Who can override a power of attorney?
A power of attorney can be overridden by the Office of the Public Guardian (OPG).
If you still have mental capacity, and you’d like to remove your power of attorney you should send a ‘partial deed of revocation’ to the OPG.
Where the individual no longer has mental capacity, and their loved ones disagree with the actions of their power of attorney, they will need to contact the Court of Protection to state their case and attempt to have the attorney removed.
Can you dispute power of attorney?
Yes, it is possible to dispute a power of attorney. Disputes tend to occur regarding the following:
- There are concerns that the attorney is making investment decisions which are not in the best interests of the donor
- The attorney is making ill-judged decisions with regard to the sale of the donor’s property
- The attorney is viewed to be stealing the donor’s money, or making unwise spending decisions
- Disputes regarding the donor’s medical treatment or care
- Disputes about the donor’s Will
Where any of these circumstances occur, the donor’s loved ones will need to apply to the Court of Protection, to resolve the dispute, or potentially have the attorney removed. Our specialist lawyers can offer full support to challenge a power of attorney.
What happens when power of attorneys disagrees?
Where a donor has more than one power of attorney, these attorneys may not agree on everything. When powers of attorneys disagree, there are several options to resolve joint power of attorney disputes:
Alternative Dispute Resolution: If two attorneys are having a dispute there are various ADR methods which can be useful, including mediation and negotiation. Our solicitors at Nelson Guest can offer support using such methods, helping attorneys to resolve matters out of Court.
Applying to the Court of Protection: Where disputes cannot be settled, the attorneys will need to apply to the Court of Protection for support to resolve the dispute. It is important that both parties seek legal advice before doing so.
Removing an attorney or attorneys: Depending on the circumstances, it may be appropriate to have one or more attorneys removed, for example where an attorney is guilty of misconduct with regard to their duties. These processes will also need to go through the Court of Protection, with the assistance of a specialist solicitor.
Can a lasting power of attorney be challenged?
Yes, a lasting power of attorney can be challenged if the donor’s loved one’s believe that the selected person is not suitable for the position, or are mishandling the donors’ affairs.
It is also possible to challenge a lasting power of attorney under the following circumstances:
- It is suspected that fraud has occurred, for example, the donor’s signature has been forged
- It is believed that the donor was pressured into creating the lasting power of attorney
- There are concerns that the lasting power of attorney isn’t legally correct
Can a joint power of attorney act alone?
Whether or not a joint power of attorney can act alone depends on what the donor specified when setting up the LPA. The document should state whether the attorneys are permitted to act ‘jointly’ or ‘jointly and severally’.
Attorneys who must act ‘jointly’ means that each attorney needs permission from all of the other attorneys before carrying out any actions on the donor’s behalf. Attorneys who must act ‘jointly and severally’ means that the attorneys may act alone.
When setting up the LPA the donor must have specified that the attorneys must act ‘jointly and severally’ on some matters, and ‘jointly’ on others.
Get in touch with our power of attorney disputes solicitors
Our solicitors can provide expert legal advice, supporting you with power of attorney disputes. If you’d like to discuss your case with one of our specialists, please contact us.