14 Apr 2020

Here at Rubin Lewis O’Brien we have drafted hundreds, if not thousands, of lasting powers of attorney over the years.  From a General Power of Attorney limited to a property transaction or the administration of an estate, to a Lasting Power of Attorney crafted for business use we are acutely aware of the power – and responsibility – that an attorney has.

Family members often ask us to disclose information where their loved one has lost capacity. It is important to remember that as solicitors, we owe a duty of confidentiality to our clients.  We can only release information where our client has told us clearly that they wish us to do so, or if there is lawful authority.  One such authority is a Lasting Power of Attorney (or a registered Enduring Power of Attorney).

We often act as attorneys for clients where the circumstances mean it is in the best interests of our client.  Although we have a duty – under the Mental Capacity Act 2005 – to consult with the client’s nearest and dearest, we are still very limited in the information that we can disclose about financial matters, etc.

Families can intervene, however, where there is a reason why a Lasting Power of Attorney is to be registered.  A Lasting Power of Attorney can be challenged, and there are two types of challenge – factual and prescribed reason objections.

Factual Objections relate to matters such as (amongst other reasons) the donor being deceased, the attorney lacking capacity or an attorney refusing to act or being made bankrupt.

Prescribed Reason Objections relate to matters such as the document being legally incorrect, the donor being pressured into making the power of attorney or lacking capacity to do so, or allegations of fraud etc.  There must be evidence to back up the allegation. The matter is likely to be considered by the Court of Protection.

Here are Rubin Lewis O’Brien we can assist with challenging Lasting Powers of Attorney, and with applications to the Court of Protection for a decision to be made about the validity of such a document.

Where a family member – or anyone else – has concerns that the donor of a Lasting Power of Attorney is vulnerable, and that the attorney is not acting in their best interests, it is possible to report this directly to the Office of the Public Guardian on 0300 456 0300 .

Damian Lines, Head of the Wills, Trusts and Probate Department said:
“A power of attorney gives a great deal of power to the attorney.  With that power comes much responsibility.  One’s own interests should not cloud the judgement of an attorney acting for the donor.  We take our role in advising donors of powers of attorney very seriously, ensuring that they are aware of the effect the document will have. The best protection is choosing the right attorney in the first place.  With clear advice and guidance, we can help our clients make an informed choice, and provide advice on the best way forward in their particular circumstances.”

Call us today in order to discuss making – or challenging – a Lasting Power of Attorney.

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The article shall not be deemed to be, or constitute legal advice.

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