When Lasting Powers of Attorney go wrong: Capacity Loss or Undue Influence

Along with a Will, including a Lasting Power of Attorney in your later life planning is a vital step to ensure your financial and health decisions are managed by trusted individuals, should you lose mental capacity.

LPAs require particular procedures and formalities to be followed, and, unlike a General Power of Attorney, they will not be automatically revoked if you become mentally incapable. An LPA can be drawn up at any time whilst you have mental capacity, but cannot be used by your Attorneys until it has been registered with the Office of the Public Guardian.

So what happens when capacity begins to diminish, or undue influence taints decisions? While there are clear protections in place, it’s important to know how they work. This article aims to shed light on these protections.

Regardless of the situation, the individual the LPA is for (the donor) will always retain the power to revoke the LPA, as long as they still have mental capacity. In order to do this, they will need to send a completed formal deed of revocation and the original LPA, together with any certified copies of the LPA, to the Office of the Public Guardian (OPG). In the event that they wish to remove one attorney, a partial revocation can be made.

In either case, there must be sufficient mental capacity, and the donor must understand the repercussions of their decision. Revocation is immediately legal, so it’s important to make the attorneys and other relevant parties aware of the changes.

In the event the donor no longer has the capacity to revoke the LPA, the Court of Protection (COP) will become involved. The Mental Capacity Act 2005 gives the COP the power to revoke or amend LPAs under certain circumstances:

1. One or both attorneys are not fulfilling their duties or are acting beyond their powers
2. Evidence of abuse, mismanagement, undue influence that affected the initial decision or fraud

Similarly to drafting a Will, if there is evidence of coercion or manipulation when the LPA was created, the document can be voided. Furthermore, if the certificate provider failed to safeguard the individual the LPA is for, there can be similar consequences.

In this instance, the Court of Protection may become involved, declaring the LPA unenforceable. The OPG may also carry out further investigations if there is suspicion of undue influence and may refer the matter to court.

• Research certificate providers – Solicitors or qualified professionals are the best people to speak to as they can provide advice and guidance to ensure the donor understands the LPA and determine their capacity.
• Avoid additional pressure – If you wish to put an LPA in place for yourself, this is your own choice. It should not be drafted if you feel pressurised to do so by someone else for their own convenience or ulterior motives.
• Immediate action – If undue influence is suspected, family members and healthcare professionals should immediately report their suspicions to the OPG or apply to the COP.

Whether you are a donor revoking your LPA or a concerned family member, we can help. Contact the team to book your free 30-minute consultation to discuss your options.

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Email: info@backhouse-solicitors.co.uk
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