Who Can Override a Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document made under the Mental Capacity Act 2005 that allows a person (the donor) to appoint one or more attorneys to make decisions on their behalf. There are two types: a Property and Financial Affairs LPA, which covers financial decisions, and a Health and Welfare LPA, which covers personal care and medical decisions. Both must be registered with the Office of the Public Guardian (OPG) before they can be used.

The Mental Capacity Act 2005 sets out the legal framework within which attorneys must operate. Attorneys are required to act in the donor's best interests at all times, to consider the donor's past and present wishes and feelings, and to take into account the views of family members and carers where relevant. An attorney who fails to meet these obligations can be removed by the Court of Protection.

The Court of Protection's Powers

The Court of Protection is a specialist court that deals with matters relating to people who lack mental capacity. It has wide powers to supervise and control attorneys acting under an LPA. The Court can revoke an LPA entirely, remove an individual attorney and appoint a replacement, make a specific decision that the attorney is unable or unwilling to make, and appoint a deputy to manage the donor's affairs where no LPA exists.

Applications to the Court of Protection can be made by any person with a sufficient interest in the donor's welfare — including family members, healthcare professionals, social workers, and the OPG itself. The Court will consider all relevant evidence before making an order. In urgent cases, the Court can make interim orders to protect the donor while the full application is heard.

The Office of the Public Guardian

The Office of the Public Guardian (OPG) is the government body responsible for registering LPAs and supervising attorneys and deputies. The OPG has powers to investigate concerns about attorneys and can apply to the Court of Protection to revoke an LPA where there is evidence of abuse or misuse. Concerns about an attorney can be reported to the OPG by telephone (0300 456 0300) or online at gov.uk.

The OPG maintains a register of all registered LPAs. Anyone can search the register to check whether a particular LPA exists and whether it has been revoked. This is useful where there is uncertainty about whether an LPA is valid or has been superseded by a later document.

Challenging the Validity of an LPA

An LPA can be challenged on the grounds that it was not validly made — for example, because the donor lacked mental capacity at the time of signing, because the donor was subject to undue influence or fraud, or because the formal requirements for execution were not met. Challenges to validity must be made to the Court of Protection and require evidence to support the grounds of challenge.

Where an LPA is challenged, the Court may order that it be suspended pending investigation, or may appoint an independent expert to assess the donor's capacity at the relevant time. Legal advice is strongly recommended before making or defending a challenge to an LPA.

Revoking an LPA While the Donor Has Capacity

While the donor retains mental capacity, they can revoke an LPA at any time and for any reason. Revocation is effected by a written notice (a Deed of Revocation) served on the OPG and all attorneys. The OPG will then cancel the registration of the LPA. A solicitor can prepare the Deed of Revocation and ensure the revocation is properly effected.

It is important to note that making a new LPA does not automatically revoke an earlier LPA. Both documents will remain valid unless the earlier one is formally revoked. Where a donor wishes to replace an existing LPA with a new one, they should revoke the old LPA at the same time as executing the new one.