A Power of Attorney is a legal arrangement that allows one person to make decisions on behalf of another. It is designed to protect individuals who may lose the capacity to manage their own affairs, ensuring that trusted family members or professionals can act in their best interests. However, not all Powers of Attorney are exercised appropriately. In some cases, concerns arise about misuse, undue influence, or the suitability of the appointed attorney. When this happens, the question arises: can you contest a Power of Attorney?
At Blackstone Solicitors, we regularly advise clients across England and Wales on challenging Powers of Attorney. Whether you are concerned about the conduct of an attorney, the validity of the appointment, or the welfare of a vulnerable loved one, understanding your legal options is essential. This article explores the grounds for contesting a Power of Attorney, the procedures involved, and how our solicitors can help you protect those at risk.
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For a free initial discussion on how we can help you deal with the legal implications of power of attorney disputes, get in touch with us today. We are also experienced in dealing with all aspects of Wills and Probate and we will review your situation and discuss the options open to you in a clear and approachable manner. Early expert legal assistance can help ensure you avoid the stress of dealing with these issues on your own. Simply call us on 0345 901 0445 or click here to make a free enquiry and a member of the team will get back to you.
What Is a Power of Attorney?
In England and Wales, there are two main types of Power of Attorney:
Ordinary Power of Attorney – used when the donor (the person giving the power) has mental capacity but wishes to delegate decision-making for a temporary period, such as during travel or illness.
Lasting Power of Attorney (LPA) – used when the donor wishes to appoint someone to act on their behalf if they lose mental capacity in the future. There are two types:
- Property and Financial Affairs LPA
- Health and Welfare LPA
LPAs must be registered with the Office of the Public Guardian (OPG) before they can be used. Attorneys appointed under an LPA have a legal duty to act in the donor’s best interests and in accordance with the Mental Capacity Act 2005.
Can a Power of Attorney Be Contested?
Yes, a Power of Attorney can be contested under certain circumstances. Challenges may relate to the validity of the document itself, the conduct of the attorney, or the donor’s capacity at the time of execution. The most common grounds for contesting a Power of Attorney include:
- Lack of Mental Capacity
If the donor lacked mental capacity at the time the Power of Attorney was created, it may be invalid. This is particularly relevant in cases involving dementia, brain injury, or other cognitive impairments.
The legal test for capacity is set out in the Mental Capacity Act 2005. The donor must have understood the nature and effect of the Power of Attorney, including the scope of authority being granted and the identity of the attorney.
Evidence of incapacity may include:
- Medical records
- Expert assessments
- Witness statements from carers or professionals
If capacity is in doubt, the matter may be referred to the Court of Protection.
- Undue Influence or Coercion
If the donor was pressured, manipulated, or coerced into creating the Power of Attorney, it may be challenged on the grounds of undue influence. This often involves family members, carers, or individuals in a position of trust.
Undue influence must be proven with clear and compelling evidence. It is not enough to show that the donor was persuaded or advised—there must be evidence that their free will was overridden.
- Fraud or Forgery
If the Power of Attorney was forged or fraudulently altered, it can be declared invalid. This includes situations where the donor’s signature was faked, pages were substituted, or the document was registered without proper consent.
Allegations of fraud are serious and may result in criminal investigation as well as civil proceedings.
- Misconduct by the Attorney
Even if the Power of Attorney was validly created, it can be challenged if the attorney is acting improperly. Examples of misconduct include:
- Using the donor’s money for personal gain
- Failing to keep proper records
- Making decisions that are not in the donor’s best interests
- Ignoring the donor’s wishes or preferences
- Failing to consult with relevant parties
Concerns about misconduct can be reported to the Office of the Public Guardian, which has the power to investigate and take action.
Who Can Contest a Power of Attorney?
Challenges may be brought by:
- Family members or next of kin
- Friends or carers with a close relationship to the donor
- Professionals involved in the donor’s care or finances
- The donor themselves (if they regain capacity)
- Local authorities or safeguarding teams
To contest a Power of Attorney, the individual must have a legitimate interest in the donor’s welfare or estate. Legal standing is assessed on a case-by-case basis.
How to Contest a Power of Attorney
Contesting a Power of Attorney involves several steps, depending on the nature of the challenge:
- Raise Concerns with the Attorney
In some cases, concerns can be resolved informally by discussing the issue with the attorney. They may be unaware of their duties or willing to adjust their behaviour.
- Report to the Office of the Public Guardian
If informal resolution is not possible, concerns can be reported to the OPG. The OPG has the authority to:
- Investigate allegations of misconduct
- Request financial records and explanations
- Issue warnings or guidance
- Apply to the Court of Protection to remove the attorney
Reports can be made online or by post, and should include as much evidence as possible.
- Apply to the Court of Protection
For serious disputes, an application can be made to the Court of Protection. The court has wide powers, including:
- Declaring a Power of Attorney invalid
- Removing or replacing an attorney
- Appointing a deputy to act in the donor’s best interests
- Making specific decisions about the donor’s care or finances
Court proceedings can be complex and emotionally charged. Legal representation is strongly recommended.
Evidence Required
To contest a Power of Attorney successfully, strong evidence is essential. This may include:
- Medical assessments of the donor’s capacity
- Copies of the Power of Attorney and registration documents
- Bank statements and financial records
- Witness statements from family, carers, or professionals
- Correspondence showing undue influence or misconduct
At Blackstone Solicitors, we help clients gather and present evidence effectively, ensuring that their concerns are heard and addressed.
Preventing Future Disputes
Many Power of Attorney disputes can be prevented through careful planning and communication. We advise clients to:
- Choose attorneys wisely, considering trustworthiness and competence
- Appoint multiple attorneys with clear instructions on how they should act (jointly, jointly and severally, etc.)
- Include guidance or preferences in the LPA to clarify the donor’s wishes
- Keep family members informed and involved, even if they are not attorneys
- Maintain transparency and accurate records
We also assist clients in reviewing and updating Powers of Attorney to reflect changing circumstances.
How Blackstone Solicitors Can Help
At Blackstone Solicitors, we offer expert legal advice and representation in all aspects of Power of Attorney disputes. Our services include:
- Assessing the validity of Powers of Attorney
- Advising on concerns about misconduct or undue influence
- Preparing reports to the Office of the Public Guardian
- Representing clients in Court of Protection proceedings
- Facilitating mediation and alternative dispute resolution
We serve clients across England and Wales and are committed to protecting vulnerable individuals and resolving disputes with professionalism and care.
Conclusion
Yes, you can contest a Power of Attorney—but doing so requires a clear understanding of the legal framework, strong evidence, and careful handling. Whether you are concerned about the donor’s capacity, the conduct of an attorney, or the circumstances surrounding the appointment, expert legal advice is essential.
At Blackstone Solicitors, we provide strategic, compassionate support to help families resolve Power of Attorney disputes and safeguard the interests of those who matter most. If you are considering a challenge or need advice on your rights, contact our team for a confidential consultation.
We have a proven track-record of helping clients create a lasting power of attorney. This also includes all the different types, even if you need more than one. We are a multidisciplinary firm and have all the expertise inhouse to satisfy the most exacting requirements of our clients. We will guide you through all the necessary legal due diligence in a comprehensive and timely manner. We firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.
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How to Contact Our Wills and Probate Solicitors
It is important for you to be well informed about the issues and possible implications of Power of Attorney disputes. However, expert legal support is crucial in terms of ensuring your wishes are met as you would want them to be.
To speak to our Wills and Probate solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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