Mental Capacity Solicitors | Court of Protection7th September 2022
Business Corporate Lawyers6th October 2022
Unfortunately, Powers Of Attorney Disputes regarding the management or administration of a decedent’s inheritance are not uncommon.
Disputes of this nature are typically stressful and complicated. In some instances, they may be time-sensitive, necessitating an immediate and effective response. Whatever the nature of the conflict, Tann Law’s dispute resolution team is prepared to assist.
As the average life expectancy in the United Kingdom rises, more and more people are appointing a carer for their property, health, and finances when they can no longer do so themselves.
One’s ability to contest a powers of attorney
Disputes frequently arise when it is contested whether the donor had the mental capacity to execute the LPA. Another source of conflict is how a solicitor is perceived to be handling the donor’s business. Typically, these disputes involve:
- Whether the donor has the remaining capability
- Costs incurred by the attorney
- Attorney-made financial investment decisions
- The sale and administration of the donor’s assets
- Health care
- The donor’s Will Gifts – the solicitor may only make modest gifts without court permission.
Resolving a Powers of Attorney Dispute
We defend claims brought by family members or third parties, as well as individuals who wish to contest the decisions of an attorney. Disputes can frequently be resolved following a meeting between the parties or through mediation. The Court of Protection (the court that handles the affairs of those who lack capacity) encourages parties to an attorney dispute to attempt alternative dispute resolution, so it is essential to seek specialised legal counsel. This is an area of expertise. Numerous of our solicitors are trained mediators who assist clients in resolving power of attorney disputes with minimal stress.
What Happens If No Solicitor Is Appointed?
If the donor did not appoint a solicitor before losing capacity, the Court of Protection would appoint a deputy with the same powers and responsibilities as a solicitor to manage their affairs. The court has the discretion to choose a deputy but generally prefers to appoint a friend or relative over a stranger (as long as it’s in the donor’s best interests to do so). The family member or close friend will be selected unless:
- Investigating the proposed successor’s behaviour with the donor’s assets is necessary.
- A conflict of interest
- Ongoing discord between family members could impede the proper administration of the donor’s estate.
- A necessity to ensure that the donor is not subject to undue influence (particularly the influence of the proposed deputy)
- Evidence that the proposed deputy abused the donor physically, emotionally, or financially.
If the proposed deputy has a poor track record of managing their finances, the court will not appoint them as deputy. When there are significant disagreements among family members, the court may appoint an independent panel deputy (often a lawyer) to manage the donor’s affairs. The court will aim to do this with the agreement of the family to avoid unnecessary legal costs.
Who covers the costs for Power of Attorney Disputes?
The general rule in the Court of Protection is that the donor’s estate pays the objector’s costs. However, this only applies if you are always reasonable: if the court determines that an application was made in bad faith, it may disregard the general rule.
If you decide to object to the registration of an EPA or LPA, or to the actions of an attorney or deputy, you must adhere to the Court of Protection’s formalities when submitting your application. This can be quite complex, so it is recommended to employ a solicitor.
You may have been contacted by the Court of Protection regarding an objection to your appointment or the manner in which you are administering the estate as an attorney. Under these conditions, it is imperative that you seek legal counsel as soon as possible, and you should almost certainly also seek legal counsel to defend any action brought against you and to explain your conduct thus far.
Our Power of Attorney Disputes Team has experience bringing and defending claims, including but not limited to the following:
- Contesting the legality of Wills
- Contesting gifts or the absence of gifts in Wills
- Disputes between Executors and Trustees or Beneficiaries and Executors Concerning claims under Intestacy (where a person has died without leaving a Will)
- Provisional claims under the Inheritance (Provision for Family and Dependents) Act of 1975
- Claims under Trusts
- Objections to Enduring Powers of Attorney Requests to be appointed as a person’s deputy are filed with the court.