An attorney is a person who has been chosen by a donor (the person making the appointment) to deal with the donor’s affairs should they lose mental capacity or the ability to deal with their health and/or financial affairs. An attorney was previously appointed under an Enduring Power of Attorney (‘EPA’). Since 1 October 2007, an attorney is appointed under a Lasting Power of Attorney (‘LPA’).
A deputy is a person appointed by the Court of Protection to make decisions on behalf of someone who lacks mental capacity to make those decisions themselves, who has not nominated a power of attorney or, if they have, that attorney is unable to act. A deputy can be a family member or a professional such as a solicitor.
Powers of Attorney and Deputy Disputes
Unfortunately, even in circumstances in which an attorney or a deputy has been appointed to manage the affairs of a person that is unable to do so themselves, disputes can and do arise.
Our team of specialist lawyers have extensive experience of dealing with a range of different circumstances where there is a dispute as to the management of a person’s affairs by their attorney or deputy. A lawyer may be able to assist in removing tension from a situation and to maintain relationships going forward. Particular examples of disputes include:
- Contested applications for the appointment of an attorney or deputy
- Disputes over the validity of an LPA or EPA. For example, on the basis that the donor did not have mental capacity or was coerced into making the LPA/EPA
- Disputes over whether the donor still has capacity to manage their affairs
- Concerns that an attorney or deputy is not acting appropriately and/or in the donor’s best interests and should be removed from their role
- Disputes over the attorney or deputy’s use of the donor’s money
- Disputed Statutory Will applications
- Welfare disputes, for example disputes over where a person should live, what care and support they should receive, who they should have contact with and medical treatment decisions
Our expert team can advise you on the merits of any potential action and guide you through the dispute to reach a swift and cost effective resolution. We regularly support our clients with:
- Reports to the Office of the Public Guardian and Social Services
- Applications to the Court of Protection, including applications to appoint a deputy, for a declaration as to the vulnerable person’s capacity and for the removal of attorneys and deputies
- Applications for the recovery of funds and/or the setting aside of transfers of property (before and after death)
- The resolution of financial abuse claims by alternative dispute resolution, such as mediation, early neutral evaluation and joint settlement meetings
Removing an Attorney or Deputy
Examples of conduct which can necessitate an application to revoke a power of attorney or remove a deputy include:
- Where they are not acting appropriately and/or in the donor’s best interests
- An attorney or deputy’s failure to keep proper accounts or financial records
- Where joint attorneys are unable to work together
- Where an attorney or deputy has misappropriated the donor’s funds
You should seek specialist legal advice if you are unsure as to whether an application is necessary.
Our team of specialist lawyers have extensive experience of dealing with attorney and deputy disputes and can assist whether you are concerned that you or someone you know is being taken advantage of, or you are the person being accused.