If you have concerns about who has been appointed as an attorney or how the Power of Attorney was prepared, there are things you can do. Lorraine Burke at Rawlison Butler looks at this topic in more detail and how we can help.
It is quite likely that you will have received notification from the Office of the Public Guardian that the power is being registered and it will give details of who is being appointed. You will need to object within 5 weeks of receiving notice of the application for the power to be registered.
Grounds for objecting to a power being registered
For both Lasting Powers of Attorney and Enduring Powers of Attorney, the Court of Protection may order that the power should not be registered if:
- If one of the requirements for creating the power was not met;
- The power has been revoked/cancelled by the donor while they still had capacity;
- If fraud or undue pressure was used to induce the donor to make the power; or
- The attorney is unsuitable or proposes to behave in such a way that is unsuitable.
In addition to the above, Lasting Powers of Attorney have factual grounds that can be used to stop the registration. For Property & Financial Affairs Lasting Powers of Attorney only, you can object on the basis that:
- the donor or attorney is bankrupt or interim bankrupt; or
- the attorney is a trust corporation that is wound up or dissolved.
For both Property & Financial Affairs and Welfare Lasting Powers of Attorney, you can also object on the basis that:
- the donor or attorney is dead;
- the donor and attorney have divorced or dissolved their civil partnership (unless the power made provision for this);
- the attorney(s) have disclaimed their appointment; or
- the attorney(s) lack the capacity to be an attorney under the LPA.
A further ground for objecting in relation to Enduring Powers of Attorney only is that the application is premature because the donor is still mentally capable.
The most common issues raised are the donor’s lack of mental capacity at the time he or she drew up the power or the suitability of the proposed attorney. Concerns as to suitability may arise where the attorney has taken funds from the donor or where the donor is being neglected or mistreated. Unfortunately, financial abuse and neglect is more common than one would expect.
What if the power has been registered but you still have concerns
Where a power has been registered and you have serious concerns over the actions of the attorney etc, you can contact the Office of the Public Guardian. The Office of the Public Guardian has the power to investigate the attorney. This includes obtaining the donor’s social services and medical records, requesting documentation and information from the attorney and interviewing the donor.
Our recommendations
The Court of Protection will not ignore the donor’s decision to appoint a particular person as their attorney unless there are very strong grounds for doing so. Therefore, we recommend that you seek legal advice before objecting to the registration of a power of attorney.
For more information on this or any other similar issue, please contact Lorraine Burke by emailing Lorraine or by calling her on 08450 990045, or speak to your usual contact in the Family Team.
This document is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this document.
