Who can override a Power of Attorney?

If you have made a Lasting Power of Attorney (LPA) and you want to make changes to it, or you have concerns about the actions of an attorney under an LPA, you may want the document cancelled. We take a look at who can override a Power of Attorney and how this is done.

Having a Lasting Power of Attorney in place is always recommended. It gives a trusted individual the authority to manage your affairs for you if you become unable to do this for yourself.

At Lockings Solicitors, we are experienced in advising clients on LPAs and drafting and registering LPAs ready for use, should they ever be needed.

Our team have exceptional experience in helping clients with Powers of Attorney and are friendly, understanding and approachable. We know that putting safeguards in place for the future and managing them can be daunting and we will always do all we can to explain everything thoroughly and guide you through the process.

Why override a Lasting Power of Attorney?

There are two types of LPA:

• Property and financial affairs LPA; and
• Health and welfare LPA

You can make one or both types and appoint different attorneys for each LPA if you wish. You can also appoint more than one attorney on an LPA and name replacement or back-up attorneys who will act if the original choice is unable or unwilling to take on the role.

Once an LPA has been signed, there are several reasons why someone might want to change or override it:

• It is your LPA and you have changed your mind about who you want as your attorney or what authority you wish to give them
• You want to end your LPA
• You have been appointed as an attorney and you no longer want to act
• You have concerns about the conduct of an attorney who has been appointed under an LPA

If changes need to be made, it is important to follow the correct process. We can advise you of your rights and how to approach the situation.

Changing a Lasting Power of Attorney

If you have made an LPA and it has been registered with the Office of the Public Guardian (OPG) ready for use, you can partially revoke the document if you wish to remove an attorney.

To do this, you still need to have the mental capacity necessary to make an LPA. You will need to complete a partial deed of revocation, which must have specific wording. This is then sent to the OPG with the original LPA.

All attorneys need to be notified of the change.

If you want to appoint a new attorney, you will need to end the LPA and make a new one. Similarly, if you want to change the extent of the authority you are giving an attorney, you will need a new LPA.

Ending a Lasting Power of Attorney

Again, you need to have sufficient mental capacity if you wish to end your LPA.

You will need to sign a deed of revocation, which we can draft for you if needed, and send it to the OPG with the original LPA if this has already been registered with them.

An LPA will end automatically if the person appointed as your attorney dies and you did not name a replacement. You should still notify the OPG of this. If you appointed a second attorney and gave them the authority to act on their own, known as acting jointly and severally, then your LPA can still be used.

In some situations, an attorney may be unable to act or no longer legally authorised to act. These include where:

• The attorney loses mental capacity
• The attorney was your spouse or civil partner and you divorce or dissolve the civil partnership
• The attorney is bankrupt or is subject to a debt relief order (property and financial affairs LPA only – they can still be your health and welfare attorney)
• The Court of Protection removes the attorney

Ceasing to act as an attorney under a Lasting Power of Attorney

The role of attorney can be time-consuming and complicated. If you have been appointed as someone’s attorney under an LPA, it may be that the time comes when you no longer feel able to take on the task.

If you reach this decision while the donor still has mental capacity, you should discuss it with them so that they can make new arrangements. They can either revoke your appointment, if they have named other attorneys who can act solely or back-up attorneys, or end the LPA and make another one. It is important that they take the necessary steps to ensure that they have the right attorneys in place while they are able to do so.

If the donor no longer has mental capacity, you are advised to speak to an expert LPA solicitor when you take the decision to step down. They will ensure that the process is handled correctly and that the donor’s interests are protected.

If the donor is left with no attorneys and they have lost mental capacity, an application can be made to the Court of Protection to appoint a deputy to deal with their affairs.

To disclaim your appointment as attorney, form LPA005 should be completed and copies should be sent to the donor, any other attorneys and your replacement attorney, if the donor has named a replacement. The original is then sent to the OPG.

Removing an attorney under a Lasting Power of Attorney

If you are concerned about the conduct of an attorney, you can report the situation to the OPG. They will investigate and can involve social services and the police if necessary. You can also report the matter to the safeguarding team of the relevant local authority.

If the OPG agrees that an attorney is not acting in the donor’s best interests, they have the power to cancel an LPA. Deputies can then be appointed to manage the donor’s affairs.

Grounds for potentially removing an attorney from their role include where:

• The attorney has not stayed within the authority granted to them under the LPA
• The attorney is investing the donor’s money in high-risk or unsuitable investments or in their own business
• The attorney is not adequately providing for the donor in the hopes of preserving the estate for themselves, for example, not arranging the standard of care that the donor can afford or not ensuring that the donor has a good standard of living, even if they can afford it
• The attorney is in financial difficulties or is taking out loans or credit in the donor’s name
• The attorney will not explain payments or withdrawals they have made or are secretive about the donor’s finances
• The attorney is making sizeable gifts on behalf of the donor that the donor would not have made themselves
• The donor is moved without the attorney consulting anyone close to them and the move may not be in the donor’s best interests

If you have worries about the attorney’s actions, you should keep detailed records of your concerns. You can speak to a solicitor if you need help in raising the problem with the OPG. It is advisable to act promptly to help the donor as soon as possible and protect them and their assets from abuse.

Contact our East Yorkshire and York area Power of Attorney solicitors

If you have questions about overriding a Power of Attorney or you would like to make a new LPA, we will be happy to help.