With life expectancy in the UK predicted to rise into the late 80s for men and women by 2030, an increasing number of people are choosing to safeguard their interests by making lasting powers of attorney. These enable a relative or friend to assume control of their affairs should deteriorating mental health mean they can no longer manage things for themselves.
Most people appointed into the role of attorney exercise the power they have been given wisely. However, as Barry Wood, civil litigation lawyer with Richard Reed explains: ‘There are a small minority who abuse this position of trust and whose actions cause concern among co-attorneys and family members who worry about the prudence of certain decisions and whether their loved one’s interests are being protected.’
In these circumstances, it is crucial that concerned relatives seek prompt legal advice.
Types of disputes involving an attorney
There are a variety of circumstances in which the actions of an attorney may be called into question, including where:
- they are seeking to make decisions on your behalf of a relative who still has the mental capacity to make decisions themselves;
- they are making decisions that you do not believe to be in your relative’s best interests;
- they are making decisions which make no financial sense, or which go against what you know your relative would have wanted;
- there is evidence to suggest that your relative may have been pressurised or coerced into agreeing to a particular attorney’s appointment;
- your relative may have been subject to undue influence; or
- you suspect a power of attorney document may have been faked.
The best way to tackle any dispute will vary depending on the circumstances and on the degree of cooperation you can reasonably expect from the attorney whose appointment or decision making has come under scrutiny.
The Court of Protection
The ultimate arbiter in attorney disputes is the Court of Protection, which is empowered to deal with any matters arising out of a person’s loss of mental capacity and specifically with questions as to:
- who should be responsible for managing an incapacitated person’s affairs;
- the point at which mental capacity can be said to have been lost;
- the powers an appointed attorney should be able to exercise; and
- any controls or restrictions that should be put in place in respect of an attorney’s authority, including when it comes to making important decisions.
If needed, the court is also able to remove an attorney from their role and to replace them with a court appointed deputy.
However, referring a dispute to the Court of Protection can be costly, time consuming and highly divisive. This should be viewed as an option of last resort which should only be considered where other non-court means of dispute resolution have been explored or where you encounter extreme hostility.
Court proceedings may also be appropriate where urgent action is required which only a court can authorize. For example, you may need an injunction to compel an attorney to produce financial records to enable you to investigate suspected irregularities or to restrain them from taking further steps pending determination of an application to have them removed.
Alternative dispute resolution
Alternatives to court action include lawyer-supported negotiation and the appointment of an independent mediator who can work alongside you and the attorney you are in dispute with to come up with possible solutions to address your concerns.
These solutions may include putting in place arrangements which oblige the attorney to consult family members before key decisions are made, or which provide for them to be supported in their role by a professional advisor who can ensure things are done properly.
Who picks up the legal costs of an attorney dispute?
Generally, any legal costs incurred in dealing with an attorney-related dispute will be paid by the person whose mental capacity has led to the need for an attorney to be appointed.
However, there are exceptions to this rule which mean that if you behave unreasonably in your approach to a dispute you could end up being responsible for the costs that are incurred. For this reason, as well as those already outlined above, it is important that you take legal advice and heed any warnings you are given over your planned approach.
For more information, please contact Barry Wood in our dispute resolution department on 0191 567 0465 or email: [email protected]