A Lasting Power of Attorney (LPA) is a legally binding document that appoints a person (or people) to act on behalf of someone if they lose the mental capacity to make decisions for themselves. The attorney must be someone you trust to manage your affairs, over 18 years old, and not bankrupt. This role is often assumed by spouses or children, but it can be filled by any adult you trust who meets the conditions.
People do not always consider making a Lasting Power of Attorney an important part of wills and succession planning, but an LPA is like an insurance policy – you may never need to use it, but it should put your mind at ease to know there is one in place. It is vital to establish an LPA to avoid putting financial stress on your loved ones if you lose mental capacity – otherwise, they will be unable to access your bank accounts to fund any care you may need.
If your loved one has appointed a Lasting Power of Attorney and listed you as someone to notify, it’s important to know how to challenge it if you believe it shouldn’t be put into action. This article will outline the grounds by which you could do this, what the process would involve, and what our experts have to say on the matter.
If your loved one has appointed a Lasting Power of Attorney and listed you as someone to notify, it’s important to know how to challenge it if you believe it shouldn’t be put into action. This article will outline the grounds by which you could do this, what the process would involve, and what our experts have to say on the matter.
Going forward, it is worth considering that an attorney’s authority can be broken down into two categories.
They may look after your Health and Welfare, which could involve managing your diet, dress and daily routines, or giving and refusing consent to medical treatments – without a Lasting Power of Attorney, your loved ones can’t make decisions about your welfare, and the doctors’ decisions will be binding.
They could also be responsible for your Property and Financial Affairs, involving:
An attorney can manage one type, or both types at the same time.
One might want to challenge a Lasting Power of Attorney for several reasons. When an LPA is being made, the donor can notify specific people about it (which is entirely optional). If they choose to notify someone, that person can challenge or object to the LPA based on either ‘factual objection’ or ‘objection on prescribed grounds’.
If you have been listed as a person to be notified and any of the following have occurred, you can challenge based on ‘factual objection’:
If you have been listed as a person to be notified and any of the following have occurred, you can challenge the Lasting Power of Attorney based on an ‘objection on prescribed grounds’, which may be that:
If you are challenging a Lasting power of Attorney based on an ‘objection on prescribed grounds’, you will be expected to provide sufficient evidence as to why you are objecting.
If you believe you have grounds for objecting to the Lasting Power of Attorney, you need to report it to the Office of Public Guardian and Court of Protection, which can remove an attorney, cancel an LPA altogether or even take action against an attorney.
You can start the objection process by filling in an application form. If you are either an attorney or one of the people notified, and you are objecting under factual objections, you must fill out Objection form (LPA007) and send it to the Office of the Public Guardian.
If you are objecting under prescribed objections, then fill in:
If you believe you have grounds for objecting to the Lasting Power of Attorney, you need to report it to the Office of Public Guardian and Court of Protection, which can remove an attorney, cancel an LPA altogether or even take action against an attorney.
You can start the objection process by filling in an application form. If you are either an attorney or one of the people notified, and you are objecting under factual objections, you must fill out Objection form (LPA007) and send it to the Office of the Public Guardian.
If you are objecting under prescribed objections, then fill in:
If you are not an attorney and haven’t been notified, you must fill out an Objection form (COP1) to the Court of Protection (you must send a copy and the original).
Note that you must object within three weeks of being notified about the LPA, but it doesn’t cost anything if you are one of the attorneys or one of the people who have been notified. If you’re not, you can still object, but you will need to pay £371.
Once you’ve applied, you’ll be notified by the Office of the Public Guardian or Court of Protection, informing you if they’re going to stop the LPA or if there will be a hearing to discuss whether it should be cancelled.
“A Lasting Power of Attorney is supposed to give the donor and their loved ones peace of mind, so if any aspect of it does not seem right, you have the right to question it! If any of your concerns are justifiable, it may be possible to overturn an LPA”.
At Whitehead Monckton, we have a fantastic wills and succession planning department. They can support you with every issue, from disputes about wills and estates to making wills and Lasting Powers of Attorney.
Look through our blog for more information on succession planning matters, and get in touch with us for advice and assistance with any issues you’re facing.
