Attorney Disputes

Disputes between family members regarding the care of their loved ones are very common. When a person loses mental capacity to make their own decisions, the responsibility to make those decisions will pass to their Attorneys if they have made a Lasting Power of Attorney (LPA). Attorneys are often family members, and many people will appoint more than one Attorney. When the person who made the LPA loses mental capacity to make the relevant decision for themselves, they are referred to as “P” – the protected party.

Disputes between family members who are Attorneys can occur for a wide range of reasons. The disagreement may start with something as simple as a difference of opinion about how P’s money should be spent, including making gifts to family members or paying care costs. More complex disputes can arise in relation to what type of medical treatment is suitable for P, or where P should live and be cared for. Sometimes the Attorneys can reach agreement about what course of action is in P’s best interests, but unfortunately sometimes the dispute between the family members with decision-making authority is one that cannot be resolved.

Attorney disputes in the Court of Protection

Responsibility for determining cases about what is in P’s best interests where the relationship between family member Attorneys / Deputies has irretrievably broken down lies with the Court of Protection.  The Court will make the best interest decision by focusing on what is right for P. The competing views of the family members will be considered, but the Court’s function is not to be an umpire between family members who cannot set aside their differences of opinion. In some cases, the Court may decide to remove one or more of the family member Attorneys or Deputies, where the evidence before the Court demonstrates that they are unable to act in P’s best interests.

In many cases, disputes between family members that are having a negative impact upon P will be raised with the Local Authority Social Services Safeguarding Team to investigate. If Social Services consider that there is fault or harm caused by a family member Attorney or Deputy, they will usually refer the matter to the Office of the Public Guardian (OPG) who will then undertake their own investigation.

Best Interest Decisions

In making a best interest decision, the Court will look at the relevant factors from an independent perspective, weigh up the pros and cons of each option and make a best interest decision based on the evidence in front of them.

In a case that concerns whether an Attorney is acting in P’s best interests, again the Court will look at the matters from an independent perspective and will determine from the information they have whether or not the Attorney has acted in P’s best interests

Removal of Attorneys

The Court may be asked to determine whether an Attorney or Deputy is acting in P’s best interests and whether they remain the right person to make decisions for P.  An application to the Court to remove an Attorney or Deputy can be made Social Services, the NHS, the OPG or by a family member (whether they are an Attorney / Deputy or not). The Court could decide to remove one or all of the Attorneys / Deputies. In an Attorney dispute about P’s finances,  the Court might revoke the LPA but appoint the family member(s) as Deputies for finance instead, so that their actions are subject to supervision and monitoring by the OPG; or to appoint a Professional Deputy to manage P’s finances.

How to avoid potential disputes when making an LPA

• When appointing Attorneys, can include preferences within the LPA which sets out your wishes and feelings to help guide your Attorneys.
• If you have a proposed Attorney who is not very “good” with money then think about whether you really want them to be Attorney for property and finance matters.
• If your proposed Attorneys have very different opinions on health and welfare matters and your views align more with one than the other, then think about who you would prefer to be making your health and welfare decisions if you are unable to.
• If the proposed Attorneys do not get on at all consider whether you want them to be appointed together or whether perhaps one or the other might be better.
• Discuss things with your proposed Attorneys – including why you are or why you are not appointing them as Attorneys.
• Think about whether to appoint a professional Attorney.

Our Court of Protection and Community Care Law team have considerable experience helping Attorneys reach a resolution without resorting to litigation, or where necessary, representing an Attorney in the Court of Protection in order to reach an outcome that is in the best interests of the person who lacks capacity.

For expert advice on resolving Attorney Disputes, contact our Court of Protection and Community Care Law team on 01273 609911, or email info@ms-solicitors.co.uk.