There has been a recent decision made by the Court of Protection (COP) in the case of TA v Public Guardian [2023] EWCOP 63, which has highlighted the importance of consideration of the issues that may lead to an Lasting Power of Attorney (LPA) being rendered invalid.

As means of background, LPAs came into force in 2007. There are 2 types of LPA (health & welfare and property & financial affairs) which replaced the former, narrower Enduring Power of Attorney (EPA), which only allowed attorneys to make decisions regarding the donor’s (the person making the Power of Attorney) property and financial affairs.

An LPA document may be invalidated based on either prescribed grounds or a factual objection.

Factual objections include: the death of the donor or an attorney, divorce between the donor and attorney, loss of mental capacity and bankruptcy of an attorney.

There is a much wider scope for an objection made on prescribed grounds, which may arise when: the LPA is not legally correct, the donor did not have mental capacity or was pressured into making the LPA or the attorney is not acting in the donor’s best interests.

For example, a common mistake leading to the invalidity of an LPA is signing and dating the document in the wrong order.  It is necessary for a strict order of signing to be followed.  Signing or dating the forms in the wrong order will render the document invalid. Likewise, the document may also be invalid if details such as full names, dates and signatures are omitted from the document.

In terms of an objection based on the capacity and free will of the donor, the certificate provider of an LPA must confirm that, at the time of signing, the donor understands the purpose and scope of the LPA and that no fraud or under pressure is used to induce the donor to enter the LPA. If, after the LPA has been created, it is determined that the donor in fact didn’t have mental capacity at the time of entering into their LPA or that they were pressured into making LPA, the document will be invalidated.

Finally, an attorney is obliged to always act in the best interests of the donor. The attorney cannot, for example, pay themselves a fee (unless it is authorised within the LPA) or use their position to their advantage. Therefore, the LPA may be reported to the Office of the Public Guardian (OPG) where an attorney appears to be acting out of their ambit. The OPG can then remove the attorney from the document, or, in some cases, the Court of Protection can cancel the LPA.

LPAs are incredibly complex documents and, if not understood correctly, there could be many circumstances in which an LPA is challenged. Therefore, for advice regarding making Lasting Powers of Attorney, please contact our Wills, Trusts & Probate Team for more information.

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