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How to ensure your Attorneys act in your best interests

Putting a Lasting Power of Attorney (LPA) in place provides protection for you if you lose the capacity to make important medical or financial decisions for yourself, such as through illness.

An LPA gives named Attorneys the power to make these decisions on your behalf when you’re no longer able to, so it’s important that you take steps to ensure they will act in your best interest when they need to.

Appointing your Attorneys

Ensuring that your Attorneys make decisions that align with your needs begins with appointing the right people to the role.

You can appoint up to four Attorneys in your LPA, so you should choose people that you trust and that you think will respect your wishes – especially when faced with challenging decisions, such as making complex healthcare choices or managing your property.

While many people select close family members like their children, spouse, or partner, it’s worth considering other trusted individuals if you believe they may be more suitable, such as a close friend or solicitor.

Are there Attorneys to avoid?

Remember that there are two types of LPA – health and welfare, and financial and property – and you can appoint different Attorneys to each one.

While this may complicate matters for your Attorneys in some situations, some people may be better suited to making decisions under one LPA than the other.

For example, your child may be capable of making the best choices for your financial situation, but they may struggle to be objective when making difficult health or wellbeing decisions. In this case, you may appoint a trusted friend to your health and welfare LPA instead of your child.

In the law, you can appoint anyone over the age of 18 who has mental capacity to make decisions as a health and welfare Attorney.

For a finance and property LPA, however, there are restrictions. You cannot appoint anyone who is currently bankrupt or subject to a Debt Relief Order (DRO).

Changing Attorneys

It’s not uncommon to realise that someone you initially appointed as an Attorney may no longer be suitable, or they may decide they cannot continue in the role. To ensure your Attorneys act in your best interest, you should take steps to remove them from their position if this is the case.

If you still have the mental capacity to make decisions, you can modify your LPA by changing one or more of your Attorneys.

To remove an Attorney, you’ll need to send a ‘partial deed of revocation’ to the Office of the Public Guardian (OPG), specifying the individual you wish to remove.

You can either appoint a new Attorney or create a completely new LPA if necessary. Should you decide to make a new LPA, the OPG must be informed to cancel your existing one via a ‘deed of revocation’.

Challenging a named Attorney

If you (with capacity) or someone else becomes concerned that your Attorney is not acting in your best interest, an objection can be raised with the OPG via an online form.

Similarly, an Attorney can object to an LPA using the same process, or by submitting a COP7 form to the Court of Protection. To avoid this situation, you must ensure that your named Attorneys are aware that you have appointed and that they’re happy to proceed.

There are two types of objections that may be raised to the OPG:

Factual – These relate to matters such as your capacity or whether an Attorney has decided to stop acting for you

Prescribed – These cover more serious concerns, such as fraud, undue pressure, or an Attorney acting contrary to your best interests.

If you or your loved ones have any concerns about the actions of your Attorneys, these should be reported directly to the OPG.

It’s essential to keep your family and friends informed about how they can raise concerns if needed so that you can remain protected in the event that you lose capacity to make important decisions for yourself.

For guidance on establishing an LPA or ensuring your Attorneys act in your best interest, please reach out to our team for expert advice.

Amy Hillson

Paralegal – Wills and Powers of Attorney

I started my professional career with Mander Hadley when I joined the firm in March 2021, having completed a Law Degree LLB (Hons) at Birmingham City University.