A lasting power of attorney (LPA) is a legal document that allows a person, known as the donor, to appoint one or more people (attorneys) to make decisions on their behalf if they lose the mental capacity to do so themselves. There are two types of LPA, one dealing with property and financial affairs and the other with health and welfare. Attorneys must always act in the donor’s best interests and within the scope of the powers granted to them.

While many LPAs work exactly as intended, there are situations where concerns arise about the decisions made or the way the attorney is carrying out their role. This blog explains when an attorney’s actions can be challenged, the grounds for doing so, and the process for raising those concerns with the Office of the Public Guardian (OPG) or the Court of Protection. If you have concerns, seeking legal advice early can help you understand your options and gather the right evidence to support any challenge.

When to challenge power of attorney

An attorney can be challenged at any point after the LPA has been registered if there are concerns that they are not acting in the interests of the donor. This can apply to both property and financial affairs and health and welfare LPAs. The actual registration of an LPA can also be opposed and if that happens, the case will usually be referred to the Court of Protection.

Concerns might arise if there is suspicion or evidence that:

• The attorney is misusing the donor’s funds or is acting in a way that creates a conflict of interest. (For example, they may be using the donor's money for their own benefit, selling the donor's property for a price below market value to a family member, or not keeping proper accounts.)
• The attorney is acting against the donor’s wishes.
• The attorney is making important decisions that do not appear to be in the donor’s best interests.
• The attorney is not following the legally correct process for the decisions they make.
• The attorney has become bankrupt or has developed their own health issues that prevent them from carrying out their duties effectively.
• The donor has regained capacity and no longer needs an attorney to act on their behalf.

In any of these circumstances, a complaint can be made with the OPG and/or an application can be made to the Court of Protection, which has the power to investigate and intervene.

Objection on prescribed grounds

If the LPA has been signed but has not yet been registered, objections can be made on prescribed grounds under the Mental Capacity Act 2005. These include objecting on the basis that:

• The donor lacked the mental capacity to make the LPA.
• The donor was pressured or coerced into making the LPA.
• The attorney is acting, or is likely to act, in a way that is not in the donor’s best interests.
• The attorney is not eligible to act, for example, because they have been declared bankrupt but are trying to act under a property and financial affairs LPA.

A factual objection can also be made if the information in the LPA application is incorrect, such as if the attorney has died or is no longer in a marriage or civil partnership with the donor.

Unfortunately, these disputes arise more often than you may think.

How the person to be notified can raise concerns

When an application is made to register an LPA, the donor has the option to name one or more people to be notified if they wish. This is someone who will receive formal notice that the LPA is being registered, giving them an opportunity to raise concerns before it comes into effect. This usually includes donor’s children, spouse, partners or other loved ones. 

The people to be notified are informed by the Office of the Public Guardian during the registration process. If these parties believe there are valid concerns - for example, that the donor was pressured into making the LPA or did not have the mental capacity to make it - they can object before registration is completed. 

Who can challenge a power of attorney?

Any person with a genuine interest in the donor’s welfare can challenge an attorney. This includes:

• The donor themselves
• Family members
• Another attorney appointed under the same LPA
• A person to be notified named in the application
• The Office of the Public Guardian
• The local authority

While the legal framework for challenges is robust, seeking specialist legal advice is crucial for making sure the donor’s best interests are protected.

How to challenge a lasting power of attorney (UK)

If there are concerns that an attorney is not acting in the donor's best interests, a complaint can be raised with the Office of the Public Guardian, which has the authority to investigate. The OPG can demand evidence, interview those involved and review records. If the OPG's investigation reveals wrongdoing, it can issue a warning or apply to the Court of Protection to have the attorney removed and typically, a deputy appointed in their place. 

In cases where the donor's welfare or assets are at immediate risk, it is possible to apply directly to the Court of Protection for an urgent order.

Seeking professional legal advice is highly recommended at this stage. A solicitor from the expert team at Switalskis can help you assess the legal grounds for your concerns, gather the necessary evidence and manage the formal process of either reporting to the OPG or making a court application.

At Switalskis, our contentious probate solicitors advise on difficult and emotionally challenging disagreements in a compassionate manner. Our team combines a detailed understanding of the law with a gentle approach to supporting families during what can be a difficult and sensitive time. To speak with one of our solicitors about concerns with a lasting power of attorney, call us on 0800 138 0458 or contact us through our website .