LPAs allow an individual (the ‘donor’) to appoint attorneys to make decisions on their behalf. However, disagreements can arise between attorneys, which can complicate the donor’s care and management of their affairs. Resolving such disputes efficiently is crucial for ensuring the donor’s interests are protected.
The first step in resolving a dispute is understanding the scope of the LPA. There are two types: one for property and financial affairs and another for health and welfare. Attorneys may be appointed to act jointly (together) or jointly and severally (individually or together). Disputes often arise when attorneys interpret their roles differently. Reviewing the LPA document and the Mental Capacity Act 2005 (MCA) Code of Practice can clarify each attorney’s authority and responsibilities, which may help resolve any misunderstandings.
Disagreements often stem from misunderstandings or lack of clarity. Attorneys should engage in open, honest discussions to express concerns and find common ground. A meeting or series of discussions, focused on the donor’s best interests, can often resolve disputes. Having a neutral third party, such as a solicitor, involved can also help facilitate constructive conversations, especially when emotions are high.
The donor’s preferences are central to the LPA, and their wishes should take precedence in resolving disputes. If the donor is unable to provide guidance, the attorneys will need to consider previous statements or other indications of the donor’s wishes. Attorneys must act in the donor’s best interests and the MCA Code of Practice explains the process for making best interest decisions.
When communication does not resolve the dispute, mediation or alternative dispute resolution (ADR) may be a helpful option. A neutral mediator can help the attorneys reach an agreement without involving the Court. Mediation is typically quicker and less expensive than litigation and allows the attorneys to maintain control over the outcome. However, it will not be suitable in all cases.
If all else fails, the dispute may need to be escalated to the Court of Protection. The Court can make a judgment on the decision in question and can also revoke or amend an attorney’s powers, appoint a new attorney, or even designate a deputy to manage the donor’s affairs. While this is a last resort, it ensures the donor’s welfare is protected and that decisions are made fairly.
To avoid disputes, careful planning is essential. The donor should select trustworthy, capable attorneys who can work together. Including clear instructions on how the donor wishes to be treated and handling disagreements can also help prevent future conflicts. Regular communication amongst the donor’s support network about the donor’s needs and wishes can reduce misunderstandings.
If you would like to discuss these themes further, please do get in touch with me on 01273 284012 or richard.bates@cognitivelaw.co.uk.