The protection of one’s welfare is no longer limited to physical care. Especially when it is a parent or an ageing member of the household, one must be prepared to manage their physical, mental and financial welfare. A legal Lasting Power of Attorney/LPA is one of the important decisions one must make. It covers the essential aspects of the person’s care, be it financial or medical, and eases the transition of worst-case scenarios.
However, not all of these legal proceedings are handled in the same way and some will have issues of abuse and fraud. How can a Lasting Power of Attorney/LPA be contested? Who can challenge such legal authority? Though intimidating at first, challenging Lasting Power of Attorney/LPA is possible, particularly when finding the best and only choice for your family.
Lasting Power of Attorney/LPA: An Overview
A Lasting Power of Attorney/LPA (POA) is an official document that allows you (hereby termed “principal”) to appoint another person or organisation (called the “agent” or “attorney-in-fact”) the right of an attorney to manage your affairs if you are unable to do so.
The POA allows the principal to decide on personal matters, with the agent acting on their behalf, should there be untoward incidents such as medical accidents, illnesses and any unavoidable circumstances that will render the principal “lacking in mental capacity” to make sound decisions. Most of these POAs are categorised into financial or medical Lasting Power of Attorney/LPAs.
1.) Financial POA
The agent given the power of a financial POA can make decisions for the principal’s finances, and are also called fiduciary obligations. This includes but is not limited to:
Drafting a financial POA does not mean creating a co-ownership or a joint account with the agent. Instead, it gives the agent access to the principal’s account and properties. The assets are still yours, but the final decision rests on you especially when there are conflicting ideas between you and your agent.
2.) Medical POA
A medical Lasting Power of Attorney/LPAs cover situations that are also part of a person’s advanced medical directive. In medical POAs, agents can decide on the following:
- During the illness, treatment or palliative care: recommend guardian during the care; choose the appropriate medical treatment, e.g. chemotherapy, etc.
- Near-death care: when to stop treatment, what to do in case of severe complications or comma, e.g. do not resuscitate declaration, etc.
- After-death care: what to do with the body, e.g. organ donation (if possible), cremation, burial, wake services, etc.
In most cases, it is advisable to separate the two aspects of a POA. It dilutes the authority of the agent over the principal’s life, thus lessening chances of misuse of Lasting Power of Attorney/LPA. It also ensures that proper communication and balance be established between the financial and medical concerns to attain the best possible scenario for the principal.
Ways to Contest a Legal Lasting Power of Attorney/LPA
Lasting Power of Attorney/LPAs is a binding contract between the principal and the agent on the assumption that the latter will always put the principal’s interests first. Inconsistencies and questionable circumstances can be the main reasons for challenging the agent’s power. The following are three main grounds that can contest a legal Lasting Power of Attorney/LPA:
Reason #1: The principal doesn’t have the right mental capacity
The principal must have the right mental (and physical) capacity to appoint the agent at the time of drafting the POA. If the POA was proven to have been created at the time of the principal’s incapacity or if coercion into signing was deemed present, a third party can bring the case to court and file for a contest.
Reason #2: The agent abuses the authority
The principal technically employs the agents or attorneys-in-fact. They are provided with a pay that is either distributed throughout their employment or by a bulk set amount. However, the principal designates as the agent that is not regulated by the court system: the principal chooses the agent as per personal preference. Therefore, the principal must select a trusted person. False identity and questionable credentials of the agent are grounds for the Lasting Power of Attorney/LPA fraud.
Given that POAs provide access to and power over monetary matters, instances of misconduct is imminent. Cases of Lasting Power of Attorney/LPA abuse in ways such as:
Reason #3: The filling of POA unfollowed formalities
The POA must obey specific protocols to be considered as binding. Required forms and supporting documents must follow the state or country’s regulations where the POA was filed.
Several free POA documents are available online for your use but they are not recommended since they may:
An incomplete POA is bound to be challenged and interjected at court.
Steps to Contest the Legal Lasting Power of Attorney/LPA
Contesting Lasting Power of Attorney/LPA is not easy to process at all, especially if it is your first time. There are a lot of processes and paperwork that you need to do and without any knowledge on how to do it, you might lose the interest to process it.
However, if you have know-how about the process, it will be easier for you to do it. Here are the steps that you should take note on how to contest a Lasting Power of Attorney/LPA.
Step #1: Consult the principal
Inform the principal of the inconsistencies observed. If the principal is still mentally capable, one can request for documents (in the form of bank and hospital records) that will be used to trace the activities of the agents.
Once proven that mismanagement and fraudulent transactions were made, the principal can file for the revocation of the POA. If a third party will step up and state claims, they must be able to request the said documents from the bank or hospital and present them to court.
Step #2: Request the agent to step down
The agent is legally designated and must formally step down to terminate the POA and resolve the ensuing conflicts.
This can be done either through manual negotiation of all concerned parties in the hope of reaching a common ground or by the third-party filing court petitions for complete records of activities that the agent did on behalf of the principal. The resolution must be that the agent will have no Lasting Power of Attorney/LPA over the principal’s assets.
Step #3: Proceed to court
Can you file a case for any issues regarding your Lasting Power of Attorney/LPA? Definitely yes, especially when misconduct is evident in the conduct of the POA. File your petition in the court which holds jurisdiction over the principal’s household. A lawyer can revoke a Lasting Power of Attorney/LPA as soon as sufficient claims are presented. Furthermore, the court can also demand the return of the stolen assets or money and file appropriate measures for fraudulence of the agent.
Who can contest a Lasting Power of Attorney/LPA?
The principal can revoke a Lasting Power of Attorney/LPA granted if the principal is mentally incapacitated to do so. A written statement called a “deed of revocation” should be filed to cancel all formerly granted powers to the agent.
If the principal can no longer terminate the document, a third party can contest. The third-party is anyone who can provide the court proofs to challenge the POA. Third parties can commonly be the immediate family of the principal.
Cases of contesting are common among family members, especially when there are considerable “favours” given to a selected few in the family that involves age concern Lasting Power of Attorney/LPA. An example would be when the principal (such as the elderly mother or father) chooses only one of their children to be the sole POA.
Conflicts usually arise among the siblings as to why that person was chosen over the other and is considered as a Lasting Power of Attorney/LPA sibling conflict. Also covered in this scenario are cases of Lasting Power of Attorney/LPA guardianship wherein the chosen guardian is not capable of providing the care needed by the principal despite being assigned to do so.
Can the sibling contest this Lasting Power of Attorney/LPA? Yes. Provided that enough proof of abuse by the agent is presented when the POA can be challenged. Of course, these cases are filed in the civil court rather than the criminal court and negotiation between family members is deemed faster and less expensive than filing for charges.
Your safety and welfare do not just cover your day-to-day living. It encompasses the assurance of a better future for you and your family should there be untoward incidents that may hinder you from performing those tasks yourself.
Contesting a Lasting Power of Attorney/LPA is an important matter and to be able to avoid possible mistakes, you need reliable legal experts like My Estate Planning to help you with the processes.
We will not only ensure you that your assets can be protected and managed in the best way possible, but we also make sure that those who matter to you will be provided with credible sources to continue living. You can give us a call at 02045165969 to talk to our advice team or visit our website to know the services we offer.