Attorneys - the rights and wrongs

A Power of Attorney is a legal document which effectively hands over the power to manage a person's affairs to another person who is then known as the 'Attorney'.   
Since October 2007 it has been possible to grant a "Lasting Power of Attorney".  The power of attorney relating to a persons finances is a power for their "Property and Financial Affairs". A power of attorney for a person's welfare is  for their "Health and Welfare". Different people may be appropriate for each role.  
The duties of all attorneys include a duty:-

  • to always act in the best interests of the donor and consider their needs and wishes as far as possible;
  • not to take advantage of the donor’s position to gain any benefit for themselves;
  • to keep the donor’s money and property separate from their own and other people’s; and
  • to consider the Mental Capacity Act and the supporting Code of Practice when acting on behalf of the donor.

What can you do if you think someone isn't acting in the best interests of the person who has lost mental capacity?

An Attorney is placed in a position of trust and should always act in the Donor's best interests.  Sadly this level of trust can sometimes be abused and on occasion an attorney does not act in the best interests of the person who has lost their mental capacity. 

If you suspect someone is abusing their position or you wish to challenge the Attorney on their appointment or on specific actions that they have taken you should contact the Office of Public Guardian.  The OPG can investigate the actions of an Attorney and can refer concerns to other relevant agencies. If the OPG has real concerns it can apply to the Court of Protection to take action against the attorney. 

The Court of Protection was created under the Mental Capacity Act 2005. It is part of the High Court of England and Wales. It can make Orders against Attorneys and Deputies and it has the authority to make decisions about the property, finances and welfare of anyone who lacks the mental capacity to make those decisions themselves. As a result the Court of Protection can suspend or cancel a Power of Attorney and can even order the Attorney to reimburse the donee for monies misapplied.  It is worth noting that the Court can also make Orders for Costs against Attorneys and Deputies if it considers it reasonable to do so. 

The right to apply to the Court where there are concerns is not limited to the Office of Public Guardian as it is possible for a person concerned to take action themselves in the Court of Protection. 

The rules governing applications to any Court can be confusing and the process itself time-consuming. This applies as much in the Court of Protection as in any other parts of the court system.  As the Court can make Orders for costs the penalties if the application fails can be significant.  Robert Horsey, head of the Ashfords Trusts and Estates Disputes Team, can provide specialist advice or representation throughout the Court process. 

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