When Power Is Misused: Challenging an Attorney Who Oversteps the Mark

A lasting power of attorney is one of the most useful documents a family can put in place. It allows a trusted person to manage finances, property or welfare decisions if the donor loses capacity. Most attorneys act conscientiously and keep clear records. When they do not, however, the consequences can be serious and the remedies are not always obvious. This guide is written for England and Wales, where the Office of the Public Guardian and the Court of Protection have particular roles.

The attorney’s authority is bounded by duty

An attorney under a property and financial affairs LPA can deal with bank accounts, pay bills, manage investments and handle property. A health and welfare attorney can make decisions about care, medical treatment and where the donor lives. Neither role is a general licence to use the donor’s assets or to rearrange the donor’s affairs to suit the attorney or the attorney’s family.

The Mental Capacity Act 2005 requires an attorney to act in the donor’s best interests and to follow the terms of the LPA. The attorney must keep the donor’s money and property separate from their own, keep records, avoid conflicts of interest and take account of the donor’s past and present wishes. Gifts are a particular danger area. Save in limited circumstances, an attorney should not use the donor’s money to benefit themselves or those close to them without clear authority. The LPA may contain restrictions, and those restrictions bind the attorney.

Warning signs that deserve attention

Concern often begins with something small: a bill left unpaid, a bank statement that does not add up, or an unexplained transfer. These are some of the signs that may justify closer enquiry:

• Large or repeated transfers to the attorney, the attorney’s relatives or the attorney’s business.
• The sale of the donor’s property at an undervalue, or a transfer of property into another name.
• Changes to bank accounts, passwords or correspondence addresses that exclude other family members or co-attorneys.
• Gifts, loans or payments that the donor would not ordinarily have made.
• Failure to pay for care, repairs or insurance while funds are being spent elsewhere.
• Refusal to provide accounts, or a refusal to explain decisions, particularly where there are co-attorneys.
• The donor being moved, isolated or prevented from seeing people who would ordinarily be involved.
• Documents being removed, destroyed or kept from those with a legitimate interest.

Poor record-keeping is not the same as dishonesty, and a single unusual payment may have a proper explanation. The question is whether the pattern, taken as a whole, suggests that the attorney is acting outside authority or not in the donor’s best interests.

Evidence that makes a difference

A complaint is stronger when it is supported by documents rather than impressions. Bank and credit card statements, Land Registry entries, conveyancing files, care home invoices, correspondence, attendance notes, photographs and witness statements can all help. A dated chronology is especially useful: it allows a solicitor, the Office of the Public Guardian or the court to see what happened and when.

Evidence should be gathered proportionately and lawfully. It is rarely helpful to confront an attorney in an unplanned way if that would put the donor at risk or lead to documents being lost. Where the donor is safe and the concern is not urgent, a measured request for information may be appropriate. Where money is disappearing or the donor is at risk, advice should be taken quickly.

Raising concerns with the Office of the Public Guardian

The Office of the Public Guardian, usually called the OPG, supervises attorneys and deputies in England and Wales. It can consider concerns about the way an LPA is being used. The OPG may ask the attorney for information, visit the donor, work with the local authority and, where necessary, apply to the Court of Protection.

A report to the OPG should be factual and focused. It should identify the donor, the attorney, the type of LPA and the conduct complained about. It should explain what evidence exists and whether there is an immediate risk to the donor’s safety or finances. If there is an urgent safeguarding concern, the local authority’s adult safeguarding team and, where appropriate, the police should also be contacted. Banks and other institutions have their own safeguarding procedures, but they should not be relied upon as a substitute for proper legal advice.

What the Court of Protection can do

The Court of Protection can decide whether an attorney has acted outside authority. It can order an attorney to provide accounts, revoke an LPA, remove an attorney, appoint a deputy, freeze assets, require the restoration of money or property, and make injunctions or other orders to protect the donor. It can also decide issues about the donor’s capacity and best interests.

Court applications are not routine. They require evidence, legal analysis and, often, specialist advice. The court will usually want to know what less restrictive options have been considered. Costs are a real consideration, and the court has powers to make costs orders. Early legal advice can help to establish whether a negotiated solution, an OPG investigation or a court application is the most appropriate route.

A checklist for clients who suspect overreach

• Preserve documents. Keep bank statements, letters, emails, photographs and notes in a safe place.
• Obtain a copy of the LPA if possible. Check what authority it gives and whether it contains restrictions.
• Prepare a dated chronology of events, payments, property dealings and conversations.
• Identify whether there are co-attorneys, replacement attorneys or a named deputy.
• Consider the donor’s immediate safety and whether adult safeguarding or the police need to be involved.
• Do not move or sell assets, or change locks or accounts, without legal advice.
• Ask a solicitor to review the evidence and advise on the OPG and Court of Protection routes.
• Keep communications factual and avoid making allegations that cannot be supported.
• Consider whether mediation or a family meeting is safe and appropriate, particularly where the donor can still express views.
• Act promptly if assets are being dissipated or the donor is being isolated.

An LPA is intended to protect the donor, not to reward the attorney. Where that trust is abused, the law provides remedies. The earlier the concern is documented and properly assessed, the better the chance of protecting the donor’s assets, dignity and family relationships.