Case Study: Successfully Challenging an Invalid Lasting Power of Attorney due to Safeguarding Concerns and an Attorney Dispute
How Victoria Crick, expert Community Care lawyer based in our Brighton office, successfully challenged an invalid Lasting Power of Attorney during a dispute between Attorneys in order to protect the best interests of an elderly woman with dementia.
The Situation
Pam is one of five siblings, whose mother is Freda, now in her late 80s and living with advanced dementia. After Freda’s initial diagnosis four years ago, the family had a meeting and agreed that they wanted to support Freda to stay at home for the rest of her life. Pam, the only one of the siblings who was in a position to do so, offered to give up her own flat and move in with Freda to ensure that she was safe and well cared for. Freda was happy with this and Pam’s siblings agreed to this plan.
At the same meeting the family agreed that Freda should make Lasting Powers of Attorney (LPAs) of both types – property and finance, and health and welfare. They decided to save money by preparing home-made LPAs rather than using a lawyer to help them. Freda decided that she would appoint her three daughters on a joint and several basis. Her two sons were a bit cross about being left out but Freda was clear-minded and explained that this was about being practical, not about favouritism. Freda pointed out that all of her daughters lived nearby and they were more likely to be the ones helping her than her sons.
The LPAs were made, sent to the Office of the Public Guardian for registration and after a few months, the registered LPA documents were returned. One had to be remade as there was an error on the form, and so the certificate providers and witnesses on each LPA were different.
Over the course of the next four years, Freda’s cognitive health declined significantly and Pam gave up work to be her full time carer. She received a small Carers Allowance from the DWP but as she had no other income, she was no longer able to help pay the household outgoings. Her co-Attorney sisters felt that it was wrong for Pam to be living for free in Freda’s home and Pam’s brothers demanded that Pam should start paying rent. The relationship between the five siblings became very poor and when they visited Freda, there would often be arguments and accusations, which Freda found distressing. Someone made an anonymous report to social services safeguarding team, suggesting that Pam had mental health and alcohol dependency issues that put Freda at risk.
What Martin Searle Solicitors did
Pam sought advice from Victoria Crick about the safeguarding referral. She also wanted to know whether Victoria could help her to have her two sisters removed as attorneys, or for Freda to cancel the LPAs and make new LPAs appointing Pam on a sole basis
Victoria’s first course of action was to consider the original LPA documents. When she looked at the Certificate Provider section of one of the home made LPAs, she identified that this was completed by a relative. Victoria advised Pam that this was a significant fault which rendered that LPA invalid. As a result, Freda had no one in place as her Attorney and medical reports indicated that Freda’s dementia was too far advanced for her to have mental capacity to make a new LPA.
During all of this, the relationship between the siblings had deteriorated and Victoria was instructed to make an application to the Court of Protection for the remaining LPA to be set aside on the basis that the Attorneys could no longer act together and to appoint a Deputy for both property and finance and for health and welfare.
The Result
Appointing a deputy for both property and finance and for health and welfare who was fully aware of their responsibilities under the Mental Capacity Act (2005) would ensure that Freda’s best interests were considered and that she would no longer experience the distress and lack of access to appropriate decision making caused by the dispute between attorneys.
For expert advice about making a Lasting Power of Attorney, contact our Community Care Law team on 01273 609911, or email info@ms-solicitors.co.uk.
