In the UK, a Power of Attorney (POA) is a legal document that allows an individual, known as the ‘donor’, to appoint one or more ‘attorneys’ to make decisions on their behalf. These decisions can relate to financial affairs, property, health, and welfare. However, circumstances may arise where a Power of Attorney needs to be overridden or challenged. This blog post explores who can override a Power of Attorney, under what circumstances, and the legal processes involved.
Understanding Power of Attorney
Before delving into who can override a Power of Attorney, it’s essential to understand the types of POA available in the UK:
Types of Power of Attorney
- Ordinary Power of Attorney: Covers decisions about the donor’s financial affairs and is valid only while the donor has mental capacity.
- Lasting Power of Attorney (LPA): Continues to be valid if the donor loses mental capacity. There are two types:
- Property and Financial Affairs LPA: Allows the attorney to handle the donor’s property and finances.
- Health and Welfare LPA: Allows the attorney to make decisions about the donor’s health and personal welfare.
The Role of the Attorney
Attorneys are expected to act in the best interest of the donor, making decisions as the donor would have made them themselves. They must follow the principles set out in the Mental Capacity Act 2005, ensuring that they consider the donor’s past and present wishes, feelings, beliefs, and values.
Who Can Challenge or Override a Power of Attorney?
Overriding a Power of Attorney is a serious matter and is typically governed by strict legal criteria. Here are the entities and circumstances under which a POA can be challenged or overridden:
1. The Court of Protection
The Court of Protection specialises in cases concerning people who lack the mental capacity to make their own decisions. It has the authority to:
- Decide on the validity of a Power of Attorney.
- Remove attorneys who fail to carry out their duties.
- Make any other order regarding the donor’s property, affairs, or personal welfare.
2. The Office of the Public Guardian (OPG)
The OPG oversees the operation of registered LPAs and EPAs (Enduring Powers of Attorney) and has the power to:
- Investigate complaints and concerns about how an attorney is exercising their powers.
- Apply to the Court of Protection for an attorney’s removal if they’re found acting against the donor’s best interests.
3. Family Members
Family members can raise concerns if they believe the attorney is not acting in the best interests of the donor. While they cannot directly override a POA, they can contact the OPG or seek legal advice to begin the process of challenging the attorney through the Court of Protection.
If there are safeguarding concerns, such as neglect or abuse, social services can intervene. They may work alongside the OPG or directly apply to the Court of Protection if they believe the attorney is not acting appropriately.
5. The Donor Themselves
As long as the donor retains mental capacity, they can revoke their Power of Attorney at any time. It’s crucial that the revocation be made in writing and that all relevant parties, including the attorneys, are informed.
Legal Process for Overriding a Power of Attorney
Challenging or overriding a Power of Attorney involves several legal steps:
- Gathering Evidence: This includes collecting documentation and proof that the attorney is not acting in the donor’s best interests or is failing in their duties.
- Legal Advice: Consulting a solicitor who specialises in elder law or mental capacity law is advisable to navigate the complex legal landscape.
- Contacting the OPG: If there are immediate concerns about the misuse of a POA, contacting the OPG can initiate an investigation.
- Application to the Court of Protection: To formally challenge a POA, an application needs to be made to the Court of Protection, which will assess the case and make a ruling.
Conclusion
Overriding a power of attorney is a complex process designed to protect individuals who may not be able to protect themselves. It’s essential that any actions taken against an attorney are done with careful consideration and legal guidance. The systems in place ensure that the interests of the donor are always paramount, safeguarding their rights and welfare when they are most vulnerable. Whether you are a family member concerned about an attorney’s actions or an attorney needing guidance on your responsibilities, it’s advisable to seek professional advice to ensure that actions are legally sound and in the best interests of the donor.
