Power of attorney and mental capacity
It can be difficult to resolve power of attorney complaints when there’s a dispute about a donor’s ability to make decisions. This can happen, for example, when:
- a donor is starting to lose their mental capacity, doesn’t accept this and still wants to make decisions
- donors and attorneys are both giving instructions but are making conflicting requests
Why businesses can't always resolve these disputes
Businesses must act in the interests of the donor but must also balance the rights of the donor against the attorney’s concerns for their wellbeing.
We don’t expect staff in businesses to decide whether someone still has mental capacity or to get involved in these disputes. It can be equally difficult for us to make these decisions. So we may decide a case would be better dealt with by the courts.
We'll also suggest that businesses, attorneys and donors speak to the Office of the Public Guardian or other relevant body, who can mediate in these situations. They'll make the right enquiries and decide the best course of action.
While this process is taking place, businesses can help by making sure:
- the donor’s finances don’t go overdrawn
- any regular payments agreed before the donor lost mental capacity continue to be made where possible
Disputes about financial abuse
Other family members who aren’t appointed as attorneys can become concerned that someone is financially abusing the donor and may make complaints to a business, or to us. This could be because:
- they object to the actions of the attorney
- they believe another organisation has misled the donor, for example, by mis-selling the donor an investment
A business shouldn’t act on unproven allegations made by other family members but they do have a duty of care to the donor.
If you suspect a power of attorney is being abused, again the Office of the Public Guardian or another relevant authority can give advice on what to do.
In the meantime, until allegations are resolved, it might be reasonable for a business to refuse to carry out certain instructions, like transferring money from a donor’s account to an attorney’s account.
Getting help
If you’re an attorney and you need advice, call us on 0300 123 9123 or 0800 023 4567.
If you’re a business and need advice in this area, call us on 020 7964 1400.
Anyone can speak to the Office of the Public Guardian if they have concerns about mental capacity or the actions of an attorney by contacting 0300 456 0300.
If there are disputes around mental capacity, then these bodies operate in each region:
- in England and Wales, the Court of Protection can appoint a ‘deputy’ or an ‘appointee’
- in Scotland, a sheriff court can grant intervention orders and guardianship orders
- in Northern Ireland, the Office of Care and Protection can appoint a ‘controller’
