Power of Attorney Dispute

What happens in a Power of Attorney dispute, when attorneys cannot agree? Inevitably, sometimes attorneys appointed under a Lasting Power of Attorney disagree about the best course of action to take.

If attorneys appointed ‘jointly’ under a Lasting Power of Attorney cannot agree, then quite simply, no decision can be made. This is because the power of attorney sets out that they must all agree and act together for every single decision. Attorneys who are appointed ‘jointly and severally’ can take decisions both with their fellow attorneys and by themselves, but nonetheless, it can be very awkward when they disagree.

In making decisions, attorneys are directed by the Office of the Public Guardian to go through the following thought process, based on key principles underlying the Mental Capacity Act 2005:

  1. Think – is this what the donor would want?
  2. Check – could the donor be helped to make part of all of this decision themselves?
  3. Remember – every decision must be made in the best interests of the donor.

Another tip to avoid deadlock in a power of attorney dispute is that the attorneys should consider taking professional advice. For example, if the dispute concerns how the donor’s money should be invested, the attorneys might take advice from an Independent Financial Advisor.

If attorneys cannot agree, the Office of the Public Guardian’s guidance suggests that they should try asking friends and family what the donor would have wanted. The attorneys should also consider using a mediator or advocate to try to reach agreement. Failing that, attorneys should contact the Office of the Public Guardian, which may be able to help. As a last resort, they may apply to the Court of Protection for a ruling on the matter. (There is a court fee of £385 to make this type of application.) If the attorneys are completely unable to work together, the power of attorney may be cancelled by the court.

Power of Attorney Dispute

Power of Attorney dispute
Power of Attorney Dispute

You may disagree with the way in which your fellow attorney is using their powers. This might be because you believe that they are either (a) acting outside the scope of their powers or (b) are not acting in the best interests of the donor. Unappealing as the idea may be, the first thing that you should do is to raise this directly with the attorney themselves. If that does not resolve your concerns, you should go on to raise them formally with the Office of the Public Guardian (OPG), which oversees how attorneys use their powers. It is important that you are prepared to support your claims with as much evidence as possible.

The OPG will investigate any claims of an attorney abusing their powers, and if it finds evidence to substantiate these, it has a range of sanctions available to it. The attorney could be required to pay back money, the power of attorney might be cancelled, or in the most serious cases, the police or social services may be involved, depending on the nature of the wrongdoing.

Chiltern Wills is a friendly, professional Will writing business based in Beaconsfield and run by former London solicitor Rebecca D’Arcy. If you would like to discuss making your Lasting Powers of Attorney, call us on 01494 708688 or complete a Free Online Enquiry.

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