Powers of Attorney Disputes

Not exactly. The Court of Protection can appoint deputies, which have a similar role to an attorney under a Lasting Power of Attorney (LPA).

The main differences are choice and court involvement. You choose your own LPA to make decisions for you if you lose the mental capacity. Decisions will go straight to them. But if you don’t have one, the Court of Protection will step in and appoint a deputy to make these decisions for you. As the Court is involved rather than just a trusted person you chose, the process becomes longer, more complex, and more expensive.

The general rule is that the donor’s estate will pay for the objector’s costs. However, this only applies if you act reasonably at all times: if the court considers that an application has been made in bad faith, it can ignore the general rule.

If you do decide to object to the registration of an EPA or LPA, or to the actions of an attorney or deputy, you will need to comply with the formalities of the Court of Protection when you lodge your application. This can be quite complex, so it’s advisable to use a solicitor to do this.

You may have been contacted by the Court of Protection about an objection to your appointment, or the way you are handling the estate. Under these circumstances, it’s crucial to take legal advice as soon as possible, and almost certainly then get legal guidance to defend any action against you and to justify your conduct so far.

Often, disputes are settled after a meeting between the two parties, or through mediation.

The Court of Protection (which works to protect vulnerable people) will encourage you to attempt alternative dispute resolution. This is a specialist area, so it’s important to seek specialist legal advice.

Many of our lawyers are qualified mediators, helping you resolve disputes in minimal time and with minimal stress.

If the donor didn’t appoint an attorney before they lost capacity, the Court of Protection will appoint a deputy to look after their affairs, with the same powers and responsibilities as an attorney.

The court has discretion to choose a deputy, but usually prefers to appoint a friend or relative (as long as it’s in the donor’s best interests to do so) rather than a stranger.

The family member or friend will be appointed unless there is:

• A conflict of interest
• A bad track record of them managing their own financial affairs
• Evidence that the proposed deputy has abused the donor in any way
• A need to investigate the proposed deputy’s conduct with the donor’s assets
• A need to make sure that the donor is free from undue influence (particularly the influence of the proposed deputy)
• Ongoing friction between family members which could interfere with the proper management of the affairs of the donor.

When there are major disagreements within the family, the court will sometimes appoint an independent panel deputy (often a solicitor) to manage the donor’s affairs. The court will aim to do this with the agreement of the family, to avoid unnecessary legal costs.