If the person who made the Lasting Power of Attorney (LPA), known as the donor, still has mental capacity, they can usually remove an attorney or revoke the LPA themselves
Where the donor no longer has the capacity to do this, the Court of Protection can become involved if there are serious concerns. The Office of the Public Guardian (OPG) can also investigate the way an attorney is acting and, where necessary, ask the Court to consider further action.
Family members and friends also have an important role in raising genuine concerns, although they cannot simply overturn an attorney's decision because they would have chosen differently.
If you are new to the subject, our guide to what power of attorney is explains how LPAs work and the authority they can give.
What Happens If the Donor Disagrees With Their Attorney?
Making a Lasting Power of Attorney does not mean handing over complete control of your life.
While the donor still has the mental capacity to make a particular decision, their own wishes remain central. An attorney should support them to make decisions for themselves wherever possible rather than stepping in unnecessarily.
If the donor decides they no longer want a particular attorney to act, they may be able to remove that person by following the correct process.
They can also choose to revoke the whole LPA if they still have the mental capacity to make that decision.
An LPA is there to support and protect the donor. It should not take decision-making away from somebody who is still able to make their own choices.
When Might the Court of Protection Become Involved?
The Court of Protection has an important role where somebody lacks mental capacity and there are concerns about the way an attorney is acting.
This might become necessary where there are questions about whether an attorney is genuinely acting in the donor's best interests, whether they are staying within the authority they were given or whether there are more serious concerns about the donor's finances, property, care or welfare.
Depending on the circumstances, the Court may be able to:
- review decisions made by an attorney
- restrict an attorney's powers
- remove an attorney
- bring an LPA to an end
- make decisions about the donor's property, finances, health or welfare
- appoint a deputy where appropriate
Every situation is considered on its own facts. A disagreement within a family would not automatically mean that an attorney should be removed.
At John Fowlers, our Court of Protection team can help where concerns about an attorney or decisions being made for somebody who lacks capacity have become more serious.
What Role Does the Office of the Public Guardian Have?
The Office of the Public Guardian plays an important part in overseeing Lasting Powers of Attorney.
Where somebody raises a genuine concern about an attorney, the OPG can look into what has happened.
Concerns might include an attorney:
- using the donor's money for their own benefit
- making unusual or inappropriate financial transactions
- ignoring instructions contained in the LPA
- acting outside the authority they have been given
- failing to act in the donor's best interests
- neglecting the donor's welfare
If an investigation identifies a serious problem, the OPG can ask the Court of Protection to consider taking further action.
The OPG does not itself simply remove an attorney, but it can play an important role in investigating concerns and bringing serious matters before the Court.
What Can Family Members Do If They Are Concerned?
Family members do not automatically have more authority than an attorney simply because they are closely related to the donor
This can sometimes be difficult, particularly where a spouse, child or sibling genuinely believes that an attorney is making the wrong decision.
The key consideration is usually whether the attorney is acting within the powers they have been given and whether the decisions are being made in the donor's best interests.
That does not mean family members have no options.
If you believe an attorney is misusing their position, acting outside their authority or putting the donor's finances or welfare at risk, those concerns can be raised.
What If Two Attorneys Disagree?
Where more than one attorney has been appointed, it is possible for different views to arise from time to time.
What each attorney can do will depend on how they were appointed under the LPA.
They may have been appointed:
- Jointly, meaning they must agree on decisions
- Jointly and severally, meaning they can act together or independently
- jointly for certain decisions and jointly and severally for others
Where attorneys are required to act jointly, they will need to agree before the relevant decision can be made.
Where they are able to act independently, disagreements can be more complicated. Neither attorney automatically has greater authority simply because they feel more strongly about a particular decision.
If those disagreements begin to affect important decisions for the donor, getting legal advice can help everyone understand their responsibilities and what the LPA allows them to do.
When Might an Attorney's Decision Not Be Followed?
Being appointed as an attorney does not mean that every decision or request must automatically be accepted.
An attorney can only act within the authority they have been given.
They cannot ignore restrictions contained within the LPA, and a Health and Welfare attorney can only make a particular decision where the donor is unable to make that decision themselves.
Banks, care providers, medical professionals and other organisations may therefore need to check the LPA before following an attorney's instructions.
This is an important safeguard for the donor and helps make sure attorneys only act within the powers they have actually been given.
What If an Attorney Is Not Acting in the Donor's Best Interests?
This is often where families understandably begin to worry.
Attorneys have a legal duty to act in the donor's best interests. They should consider the donor's wishes, values and circumstances and involve them in decisions as much as possible.
Concerns may arise where there are, for example:
- Unexplained withdrawals or transfers of money
- Unusual gifts
- Property transactions that do not appear to benefit the donor
- Signs that the attorney is benefiting personally
- Unpaid bills or care costs
- Restrictions on appropriate contact with family or professionals
- Decisions that appear to ignore the terms of the LPA
Not every disagreement means an attorney has acted improperly.
Families can have very different views about what is right for someone they care about. However, concerns about financial abuse, neglect or misuse of authority should be taken seriously.
When Can a Lasting Power of Attorney Come to an End?
A donor who still has mental capacity can normally revoke their Lasting Power of Attorney by following the correct process.
An LPA can also be affected by changes in an attorney's circumstances.
For example, an attorney may die, lose mental capacity or, in some Property and Financial Affairs LPAs, become bankrupt or subject to a Debt Relief Order.
The Court of Protection can also bring an LPA to an end where there are appropriate grounds for doing so.
What happens afterwards will depend on how the LPA was originally prepared and whether any other or replacement attorneys were appointed.
What Should I Do If I'm Worried About an Attorney?
It is not always easy to know whether you are dealing with a difference of opinion within the family or something that requires more formal action.
The right next step will depend on what has happened, whether the donor still has mental capacity and whether there is an immediate risk to their finances or welfare.
In some circumstances, the donor may still be able to deal with the issue themselves.
In others, concerns may need to be raised with the Office of the Public Guardian or considered by the Court of Protection.
Where there is an immediate safeguarding or criminal concern, other authorities may also need to become involved.
Seeking advice early can help you understand the attorney's actual authority, whether there are genuine grounds for concern and what options may be available.
How Can John Fowlers Help?
Disagreements about Powers of Attorney can be particularly difficult because they often arise when families are already dealing with illness, changes in mental capacity or difficult decisions about someone's future.
At John Fowlers, we can help you understand what the LPA allows, what responsibilities the attorney has and what options may be available if you are concerned about the way those powers are being used.
If you are worried about the actions of an attorney, or simply want some clarity about who has the authority to make a particular decision, contact the John Fowlers team and we can talk through your circumstances with you.