Power of Attorney Disputes : What You Can Do

Having Power of Attorney over someone is an incredible responsibility. It also has potential for misuse and negligence. Not everyone is suited or qualified to take on this role. Circumstances can also change over time which can make acting as an Attorney more difficult. 

If problems should arise between you and the other Attorney(s), it’s important to know what you can do next.

1) Summary in 30 Seconds

  • Disputes over Power of Attorney can arise between siblings or other family members who have different opinions regarding a loved one’s care or treatment.
  • It’s important to try and resolve conflicts yourself before taking any legal action.
  • The Office of the Public Guardian oversees the management of Lasting Power of Attorney instruments. Many common Power of Attorney problems can be resolved through them without having to go to court.
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2) Common Reasons for Power of Attorney Disputes

  • Sibling and family conflicts over Power of Attorney. Most often, disputes over Power of Attorney happen between family members. This especially happens when one or more family members have Power of Attorney and the others do not. Sibling conflicts over Power of Attorney can arise when there’s differing opinions on how the family member in question should be cared for, or what they would have preferred if they still have capacity to make decisions. Differences of opinion at some point should be expected, but both parties must be willing to work together to solve disagreements. 

  • Financial mismanagement or elder abuse. At the very worst, a person may believe that their family member or friend is being mistreated or taken advantage of due to their deteriorated condition. If someone is appointed as an attorney over their financial affairs, they may potentially have full control over someone’s money and assets. Such a situation can go unnoticed for months or even years. If you have concerns about a family member and their appointed Attorney(s), the time might have come for you to do something. 

  • Joint Power of Attorney problems. Another problem that can arise is when you are a Joint Attorney with one or more other individuals. Depending on how this has been specified in the Power of Attorney document, you may have to make a lot of decisions together. Problems may arise that could make it very hard to work together.

 If you are starting to feel like the situation is becoming unworkable, you may need to do something about it. The care of the individual for whom you have Power of Attorney over must come first. It is imperative that issues between Attorneys are resolved so that your loved one can receive the best possible treatment and that their affairs are kept in good order.

3) How to Resolve Conflicts

Make sure you have all the facts. When our emotions are involved, our judgment may become clouded. We may misinterpret events or conversations. We may struggle to see the other person’s point of view. Before taking any action, make sure to assess the situation from as neutral a stance as possible. Gather all the facts you have and try to look at the situation or the issue from an outsider’s point of view. Ask a close friend who is not personally involved to look at the matter with you to see whether you have misconstrued it. You may find that you can accept a difference in opinion regarding a situation and leave it alone. Even if you still feel you need to dispute the matter, you will be better prepared to argue over the facts instead of letting emotions and family differences dominate the conversation.

Communicate your concerns. It is important before taking any formal legal action to try and work things out in an informal way. Arrange for you and the Attorney(s) to meet in a neutral setting. Have the topics you want to discuss prepared and bring with you any proof you need to back your concerns up. Make sure to listen to their side of things as well, even if you don’t agree. Even if you don’t leave the conversation with a resolution, leave the door open to further discussions.

Get help from a third-party. If things are already becoming acrimonious, suggest meeting with a neutral third-party who can mediate. This could be a family counselor, a solicitor or a trained family mediator. They are likely to be knowledgeable already in this area and have the skills to keep a conversation on track with the goal of reaching an equitable solution for both parties.

While such an intervention can be challenging, it is a far more less stressful and more effective way of resolving disputes.

4) Power of Attorney Problems : How to Take Action

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If you have tried to talk things through with the Attorney(s) and still have concerns about a person’s care or treatment, you might need to take further action. This may be urgent if you believe they are in danger of physical harm. You can make a complaint to:

  • The relevant care agency or care home
  • Social Services
  • The NHS

Each of these have a set procedure in place for the investigation of both formal and informal complaints. They also have resources to help with the complaints process. For the NHS, it is the Patient Advice and Liaison Service (PALS), an informational body that helps with resolving complaints. The relevant Social Services department website will contain information on their complaints procedure, as well as information on advocacy services.

  • The Office of the Public Guardian

    Attorney(s) must follow a strict code of practice. If you feel they have breached this in a serious way, you can make a complaint to their governing body, the Office of the Public Guardian. They maintain the register of LPAs and liaise with the courts. They also have the ability to investigate complaints. This could include examining copies of local authorities records and health records, or interviewing the Donor and Attorney(s) if necessary. Many issues can be resolved with their input alone and never have to proceed to court.

 

  • The Court of Protection

    For very serious Power of Attorney problems which cannot be resolved any other way, you can make an application to the Court of Protection. One of their duties includes resolving problems with Attorney(s). They have the authority to intervene and make orders or give directions regarding the care or treatment of the person in question.

    An application to the court will follow a set procedure and you may be eligible to pay court fees. Before taking such a step, seek out the expert advice of a solicitor who specialises in this area.

4/ Should You Use a Solicitor?

If the issue proceeds as far as the Court of Protection, you may be facing significant costs. Therefore, you may wonder whether it is better to forgo legal representation in favour of representing yourself, and thereby avoid solicitors fees. While it is possible to do this, it is important to consider the implications of this first before going down the court process alone. 

  • The court process can be complicated and lengthy. Bringing a dispute matter to the Court of Protection involves many steps and a great deal of paperwork. It will inevitably be a time-consuming process that may take many months to resolve. Errors in the documents you submit, as well as general lack of legal know-how, could potentially cause further set-backs. 

  • The other party may have legal representation. This may leave you on unequal footing. A solicitor has many resources at their disposal, as well as legal expertise and in-depth knowledge of the court process. If you have a case of some complexity, it may be quite difficult for you to argue your side.

  • The welfare of your loved one is at stake. Ultimately, the Court of Protection will make a decision that best serves the interests and needs of the person in question. However, if you have very strong opinions or concerns over their current treatment or care, you probably do not want it left entirely to their discretion without doing your utmost to make the Court see your point of view. After all, this is your loved one and may involve some aspect of their day-to-day comfort and wellbeing. 

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