Objecting to a Power of Attorney Appointment: Is It Possible?
A lasting power of attorney (LPA) takes effect as soon as it is registered with the Office of the Public Guardian (OPG), but it’s possible to object to the appointment if there’s a good reason to do so. Some of the reasons you might want to report an attorney include believing they’re not acting in the person’s best interests, that they lack the mental capacity to make decisions on their behalf, or that the individual was pressured into signing the power of attorney.
Objecting to an appointment can be quite complex: there are various forms to fill out depending on your circumstances and you may benefit from speaking to Lasting Power of Attorney solicitors before going forward. Enable Law can help by assessing your right to object, preparing and submitting your case to the Court of Protection or Office of the Public Guardian, depending on what stage you are at.
Can You Have More than One Power of Attorney?
It’s your decision whether to appoint just one attorney or several. The majority of people appoint between one and four attorneys. You can technically have as many as you like, but it’s usually a good idea not to appoint too many to avoid conflict between lots of people trying to act on your behalf at once. If you choose to have more than one attorney you can appoint them to act together in all decisions, or allow them to make decisions on their own. You can also appoint replacement attorneys.
Who Can Object to a Power of Attorney Appointment?
There are three main types of people who can submit an objection to a Power of Attorney:
- The Donor.
- The Attorney.
- The ‘persons to be told’, who the individual creating the LPA has notified.
It’s still possible to object to the appointment of an attorney if you fall outside these groups, but the process is more complicated.
How Do You Object to an LPA?
There are three different types of objection forms which can be submitted.
The first form ( LPA006) can be completed by the donor themselves, if they believe an attorney is unsuitable. The form must be submitted within three weeks of receiving notification of the registration.
The second form (LPA007) can only be completed by the attorney themselves or a ‘person to be told’. It allows objections based on “factual grounds”:
- The donor is bankrupt or interim bankrupt.
- The attorney is bankrupt or interim bankrupt.
- The attorney is a trust corporation that has been wound up or dissolved.
- The donor has died.
- The attorney has died.
- The donor and attorney have annulled a marriage or civil partnership.
- The attorney lacks capacity to act.
- The attorney has disclaimed appointment.
This form should be used before an LPA is registered, and sent in to the OPG, not the Court of Protection.
However, if the LPA is already registered, a different form and procedure should be used. A full application will need to be submitted to the Court of Protection for the removal of the attorney, and additionally, Form (LPA008) should be completed by the attorney or a ‘person to be told and sent into the OPG to let them know about the objection.’, At this stage, objections must be based on “prescribed grounds”:
- The LPA isn’t legally correct (for example, you don’t believe the donor had the mental capacity to decide the make an LPA).
- The donor cancelled their LPA when they had capacity.
- The donor was pressured in to making the LPA.
- You suspect fraud.
- An attorney is acting against the donor’s best interests.
As above, when submitting this form, the person applying (if they’re the attorney or a named person) must also submit a COP 7 to the Court of Protection. For anyone else objecting, a COP 1 form needs to be submitted instead.
If instead of an LPA, there is an Enduring Power of Attorney in place, a different process must be followed. In that case, form (EP3PG) can be completed by the donor or a ‘person to be told’, but only if the attorney has applied for an EPA to be registered, and only with one of the “prescribed grounds” set out within that form. They are very resitricted. When submitting this form a COP 8 also needs to be sent to the Court of Protection.
Is There a Penalty for Abuse of Power of Attorney?
With sufficient evidence, attorneys who have abused their position of power will be removed. The Court may also direct that an application is made to change the donor’s will so that an abusive attorney doesn’t inherit under their will. Seperatly the abusive attorney can be prosecuted in the criminal courts. If, for instance, you had a sister abusing her power of attorney for personal gain, objecting and providing evidence against her would be the right course of action.
The law is set up to protect your loved ones from being taken advantage of, so even though family and personal disputes are often painful, raising valid objections is important.
Do You Need to Object to a Power of Attorney?
Our expert team of Lasting Power of Attorney solicitors are experienced at dealing with these kinds of disputes and aim to resolve matters without having to engage in lengthy and expensive Court of Protection proceedings.
If you have a Power of Attorney dispute and are unsure how to proceed, please contact our friendly team today.