Can I contest a Lasting Power of Attorney?

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Writing a will alone may not be sufficient to protect your estate.

If, as a testator, you fear that you may lose the physical or mental capacity to deal with your affairs at some point in the future, you should consider putting in place a Power of Attorney to make sure that your wishes are honoured and that the administration of your estate doesn’t suffer a setback when or if you are incapacitated.

It is advisable to seek legal assistance when looking to challenge a Lasting Power of Attorney.

What is a Power of Attorney?

An attorney is an individual who is trusted to act on behalf of a person to carry out their wishes.

The document which describes the nature of the affairs that need to be carried out, and in which the attorney is named and authorised, is known as a Power of Attorney.

The creator of the Lasting Power of Attorney and the person who is allowing the Attorney to make decisions on their behalf is known as the donor.

The common types of Power of Attorney are as follows:

Ordinary Power of Attorney

This type of Power of Attorney can cover your financial affairs.

Unlike other types of Power of Attorney, it doesn’t come into effect when a person loses their mental capacity but when they are still of sound mind and only need cover for a temporary period such as during a holiday or hospital stay.

Lasting Power of Attorney

An LPA comes into effect when you do not wish to be involved in the decision making process any more or you lose mental capacity to do so.

Decisions relating to your finances or health and care can be covered by a Lasting Power of Attorney.

Contesting a Power of Attorney

The grounds on which it is possible to raise an objection to the registration of a Power of Attorney are classified into two types;

  • Factual Objections.
  • Prescribed Objections.

Factual Objections

  • An attorney or the donor has passed away
  • The donor and an attorney had a civil partnership or were married but have ended their relationship
  • The appointed attorney doesn’t have the necessary mental capacity to fulfil their responsibilities
  • An attorney has decided to disclaim their appointment
  • An attorney or the donor are interim bankrupt or bankrupt

If you are raising an objection on any of the above grounds, it must be raised within 21 days of being informed about the registration.

Prescribed Objections

  • The LPA is technically incorrect
  • You have reason to believe that the donor was lacking the necessary mental capacity at the time of making the LPA
  • Upon regaining capacity, the donor cancelled their LPA
  • The document has been forged
  • The donor was acting under pressure when the LPA was made
  • An attorney is not acting in the best interests of the donor 

For objections of this kind, you will need to provide evidence along with the form stating the objection.

The following are some of the forms available on the UK government website which need to be completed by those who wish to challenge a Power of Attorney:

LPA 006 – If you wish to raise an objection as the donor of the LPA.

LPA 007 – If you’re not the donor but a ‘person to notify’ or attorney and wish to raise an objection on factual grounds.

LPA 008 – For anyone (including a ‘person to notify or an attorney) who wants to object on prescribed grounds.

It is advisable to seek legal assistance when looking to challenge a Lasting Power of Attorney.

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