Can a lasting power of attorney be challenged?

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A Lasting Power of Attorney (LPA) is a legal document that enables a person (the donor) to give another person (the attorney) the right to make decisions on their behalf when they cannot make those decisions themselves.

Due to the nature of these documents, there are times when situations arise that may warrant a challenge to a Lasting Power of Attorney.

You have every right to make a legal challenge and it could be argued, it is your duty to do so if you believe someone is at risk. 

Grounds on which a Lasting Power of Attorney can be challenged

1.    Abuse:

If you, or anyone else, notices that the attorney is using their position for their own benefit, or that they are not acting or making decisions that are in the best interest of the donor, and/or they are profiting from the performance of their duties asides from the fee authorised by the donor, you can challenge the LPA

2.    Formalities:

You may challenge an LPA based on the document creation and formalities that surrounded it. The law is very strict with regards to how an LPA should be created.

In all instances, the donor must sign the document, and someone else should authenticate this signature. The law dictates that witnesses be present for your signature and that those witnesses sign the document too.

There are also requirements that the document should include precise statutory language. If one or some of these are not in place at the point of document creation and execution, you can challenge the LPA on these grounds.

3.    Fraud:

This can mean that the donor was misinformed about what they were signing or was unaware of the contents of the document they were signing.

It could also mean that that they had a language barrier or even physical impairment like blindness or hearing disability and because of any of these, a document was wrongly presented to them and is therefore invalid. 

4.    Lack of capacity:

The presence of mental capacity before an LPA is signed, is an essential requirement in every jurisdiction.

If the donor had mental incapacity of any kind and still went ahead in signing their Lasting Power of Attorney, the document could be rendered void.

5.    Undue influence:

If a person had influence over the donor and it can be proven that this person influenced the donor’s choice of an attorney then, the lasting power of attorney can be challenged.

How to challenge the Lasting Power of Attorney

In order to challenge a Lasting Power of Attorney, you need to:

  • Recognise the grounds on which you are disputing.
  • File a petition with the court that has jurisdiction over the residence of the donor seek a judicial revocation of the Lasting Power of Attorney. You may also seek an appointment as the donor’s guardian.
  • Submit a discovery request seeking documentary evidence that supports your grounds, to the concerned persons.
  • Subpoena any witness(es) that can provide testimony that will help your cause.
  • Attend the hearing and plead your cause.

In summary

In answer to the original question; yes, you can challenge a Lasting Power of Attorney.

Providing your challenge meets one of the grounds laid out above, you have every right to make a legal challenge and it could be argued, it is your duty to do so if you believe someone is at risk. 

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