A Lasting Power of Attorney (LPA) is a legal document that allows an individual (known as the donor) to appoint one or more people (known as attorneys) to make decisions on their behalf. It is designed for situations where the donor loses the mental capacity to manage their own financial affairs or healthcare decisions, although it may apply in some cases where the person still has this capacity.

An LPA is made as an agreement between the donor and their attorney, and must then be registered by the Office of the Public Guardian. There are two types of LPA, each governing different areas of the donor's life and empowering specific types of decisions, but they work in the same way. Registration is a requirement in either case before the document can be used to make decisions on behalf of the donor. Without this registration, the LPA lacks any legal authority.

As such, the registration is the first point at which you can raise objections to a lasting power of attorney. Here, the contentious probate experts at Switalskis explain the different types of LPA and the grounds on which you can object to registration. We also discuss the steps you can take if the document is already registered to stop an attorney from engaging in financial abuse or making decisions that are not in the donor's best interests.

What are the two types of LPA?

There are two types of lasting power of attorney in England and Wales, each with a distinct legal function and scope. Both allow the donor to appoint one or more trusted attorneys to make decisions on their behalf, but each covers a different aspect of life and may be subject to slightly different rules. A donor may have one or both of these LPAs in place.

While the two documents are different, registration is required for both and the process of objecting to registration is the same in both cases. The two types of LPA are:

Health and Welfare LPA

This LPA covers decisions about the donor’s personal health, medical care, daily routine and living arrangements. It only comes into effect when the donor no longer has the mental capacity to make those decisions for themselves. It enables the attorney to:

• Decide where the donor lives, such as choosing a care home.
• Make choices about daily routine, such as diet, dress and activities.
• Make decisions about medical care, including consenting to or refusing treatment.
• Decide who can visit the donor.

The donor may also have specified in the LPA that the attorney could have the power to give or refuse life-sustaining treatment. In these cases, it is important to note that an attorney cannot act unless the donor has lost mental capacity and cannot make the specific decision themselves. Mental capacity assessments must be made according to the Mental Capacity Act 2005 to determine whether someone has lost capacity before their attorneys can act on their behalf.

Property and Financial Affairs LPA

This LPA gives attorneys the authority to manage the donor’s finances and property. Unlike the Health and Welfare LPA, it can be used both when the donor has and when they lack capacity, depending on the donor’s preference and the terms of the lasting power of attorney. When they are empowered to act, an attorney can:

• Access and manage the donor's bank accounts or building society accounts.
• Pay bills, such as utilities, rent or mortgage.
• Collect income, pensions or benefits.
• Buy, sell or rent out the donor’s property.
• Make decisions about investments.
• Manage tax affairs or apply for benefits on the donor's behalf.

If the donor still has capacity, the attorney must act with consent unless the LPA states otherwise. Attorneys are legally obliged to keep records, maintain separate finances and not misuse funds, and the Office of the Public Guardian can investigate and revoke powers if misuse is suspected.

In all cases, attorneys must always act in the donor's best interests and, if they failed to do so, there may be scope to remove the attorney. Disputes of this nature can be complex, and the best approach is to seek specialist advice from a contentious probate solicitor before raising any objections.

Can I object to the registration of a lasting power of attorney?

An LPA does not become legally valid when the donor's signature is on it. There is a strict process of registration that must be followed before the document is used. Before the parties to the LPA submit the registration, they must send an LP3 form to any relevant family members and other individuals concerned in the LPA. These people will be listed as 'people to notify' or 'people to be told' in the document itself.

If you are one of these people, you'll have three weeks in which to object to the registration by contacting the Office of the Public Guardian. This is typically an opportunity to make factual objections, rather than to raise concerns about the attorney's actions or intentions. If errors mean that the document is not legally correct, you can object and it may need to be redrafted before it can apply.

Grounds for factual objections include if:

• The donor or attorney has died.
• The donor and attorney were married or in a civil partnership at the time of the LPA but have since divorced.
• The donor or attorney has gone bankrupt
• The attorney no longer wishes to act or lacks capacity themselves.

If you're neither an attorney nor a 'person to be told', you may still be able to object to the registration, but this involves paying a fee. You must be able to show that you have a genuine interest in the donor’s welfare (for example, you are a close relative, social worker, or healthcare professional) even if you are not formally listed in the LPA paperwork. You should seek legal advice at this stage if you are concerned that an LPA should not be registered but no factual objections apply.

What can I do if the LPA has been registered?

If the LPA has been registered, any objections must be based on "prescribed grounds", which are the legal reasons why a lasting power of attorney may be withdrawn or overturned. These are similar to the grounds for challenging a will, and require you to provide evidence that the document itself is illegitimate on the basis that:

• The donor lacked mental capacity when the LPA was created.
• There was undue influence or coercion.
• The LPA is not legally valid for procedural reasons.
• The donor cancelled their LPA at an earlier point.
• The LPA was created fraudulently or forgery occurred during the signing process.
• An attorney is abusing their role or acting contrary to the donor’s best interests.

It can be difficult to provide sufficient evidence to have an LPA overturned on these prescribed grounds, so working with a solicitor in these circumstances is crucial. You should be an attorney, a person to be told or a person with an interest in the donor's welfare to be able to make an objection.

When you have submitted the relevant forms, the Office of the Public Guardian may place a hold on the registration process or order that any attorneys stop acting in that capacity until your concerns can be investigated and the matter resolved. The Court of Protection has the power to remove attorneys, cancel the LPA entirely and order safeguarding measures in these cases, depending on the findings of the court process.

If you have evidence that an attorney is abusing their power, making decisions that are not in the donor’s best interests, or otherwise acting dishonestly or negligently, you can report this to the Office of the Public Guardian. Similarly, if you believe an attorney is unsuitable or must be removed, you can apply directly to the Court, although this is typically a last resort where informal resolution or intervention by the OPG has failed or is inappropriate. Finally, if a donor still has (or regains) capacity to make healthcare or financial decisions, the LPA can be withdrawn or revoked according to the donor's decision.

How to challenge a lasting power of attorney

If you believe you're in a position to challenge the registration or application of a health and welfare LPA or a property and financial affairs LPA, act promptly. If you have been given notice as a 'person to be told', you will generally only have three weeks to respond before registration is final. During this period, you must also gather as much evidence as you can. Your solicitor will outline the types of evidence you may need, which could include medical assessments, witness statements, bank records or proof of coercion. Evidence of coercion, forgery and fraud is difficult to secure and challenges on these grounds are rare, and unlikely to be successful. However, seeking specialist legal support from a solicitor experienced in Court of Protection and contentious probate matters is highly advisable.

At Switalskis, our contentious probate solicitors have a wealth of experience in helping clients to challenge attorney decisions and protect the interests of donors when important decisions are being made. To learn more about how we can help, contact our team today. Call us on 0800 138 0458 or use the form on our website to get in touch.