Our latest Wills and Probate blog explains what a Power of Attorney (POA) is and the different types of POA available. It also covers how to dispute a Power of Attorney.
What is a Powerof Attorney?
A Power of Attorney is a legal document that allows a person (the 'donor') to appoint one or more trusted people (known as 'attorneys'). This is to help them make decisions or to make decisions on their behalf.
There are different types of Power of Attorney documents:
General Powers of Attorney
This allows someone else to manage your financial affairs when youcan't. This might be because of a physical disability. This type of document is only valid whilst you have the mentalcapacitytoauthoriseyour attorney(s) to act. A General Power of Attorney is automatically revoked if you lose mental capacity.
Enduring Power of Attorney (EPA)
EPAs allow your attorney(s) to continue managing your finances afteryou'velostcapacity. Since 1st October 2007 it has not been possible to create a new EPA.However,those created before 1st October 2007remainvalid. Your attorney can use an EPA to support you with managing your finances whilst you still havecapacity. However, if you losecapacityto manage your own financial affairs, your attorney must register the EPA with the Office of the Public Guardian if they want to continue acting on your behalf.
Lasting Power of Attorney (LPA)
Since 1st October 2007 an LPA is now the main way of appointing a person who can help support you to make decisions. There are two types of LPA:
Property and Financial Affairs
- Gives the attorney(s) the power to assist the donor with financial decisions. Such as: managing their bank accounts, paying bills or buying and selling property.
- Can assist the donor before or only after they lose mental capacity to manage finances.
Health and Welfare
- Empowers the attorney(s) to make personal care and medical treatment decisions for the donor.
- Can only be used if the donor lacks capacity to make the decision for themselves.
Disputing a Power of Attorney
Disputes can arise for several reasons when an attorney has been appointed. Conflicts can arise between attorneys when multiple attorneys are appointed. They may also occur between the attorney(s) and family or friends with an interest in the donor's welfare, or between the attorney(s) and the donor themselves.
You may wish to dispute a power of attorney if you believe it was granted to the wrong person. Additionally, you might dispute it if the donor lacked the necessary capacity to create the power of attorney at the time. You may have concerns that the power of attorney was created fraudulently. For example, the donor's signature was forged or that the donor was pressured into making one in the first place.
You may also have concerns that an attorney's actions are not in the best interests of the donor. Anyone who has concerns over an attorney's conduct has the option to make a report to the Office of the Public Guardian (OPG). This is the public body which supports and supervises attorneys. The OPG have the power to investigate and refer matters to the Court of Protection if they believe an attorney has acted inappropriately and should be removed or have their powers limited.
It is important that you seek specialist advice before any action is taken. The formalities of the Court can be quite complex.If you have concerns about an attorney's conduct or are an attorney facing challenges, seek legal advice from a specialist solicitor to navigate the process.
Originally published on 5 November 2024
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
