Family dynamics are complicated at the best of times. When someone loses mental capacity, those complications can intensify significantly. Disputes between attorneys and other family members, or between multiple attorneys, are far more common than most people realise, and they can escalate quickly if they are not handled carefully.
Understanding what happens when a family member challenges your decisions, and how to protect yourself when it occurs, is something every attorney should think about before they need it.
Why family disputes arise
Disagreements about LPA decisions tend to arise for a handful of predictable reasons:
- One family member believes the attorney is making decisions that do not reflect the donor’s wishes
- There is concern about how the donor’s money is being spent or managed
- Family members disagree about care arrangements, medical decisions, or where the donor lives
- There is suspicion, sometimes unfounded, that the attorney is benefiting personally
- Genuine grief and distress lead to displaced anger that is directed at the attorney
- Multiple attorneys have been appointed and cannot agree on a course of action
None of these are entirely unusual, and the presence of conflict does not mean the attorney has done anything wrong. But a complaint made in bad faith can still cause enormous disruption, particularly if records are not in order.
How complaints are made
A family member who has concerns about an attorney’s conduct can take several routes:
Raising it informally
Many disputes begin with a conversation or a letter. If a family member approaches you directly with a concern, taking it seriously and responding transparently, with your records to hand, will often resolve matters without escalation.
Complaining to the OPG
If informal resolution fails, a family member can complain directly to the Office of the Public Guardian. The OPG takes all complaints seriously. It will typically write to you requesting information and may open a formal safeguarding enquiry. At this stage, your records are your primary defence.
Applying to the Court of Protection
Any person with a sufficient interest in the donor’s welfare can apply to the Court of Protection. The Court can hear disputes about specific decisions, ask for accounts to be produced, appoint a professional deputy to replace the attorney, or suspend or revoke the LPA entirely.
A common scenario
A son is the sole attorney under his mother’s Property and Financial Affairs LPA. His sister lives further away and is concerned that their mother’s savings appear to be reducing more quickly than expected. She raises this with the OPG. The son has been entirely legitimate in his management of the finances, using funds to pay for increased care support, home adaptations, and a private care manager. But his records are incomplete and he cannot clearly account for all the expenditure. The OPG opens a formal investigation. Even though nothing improper has occurred, the process takes eight months and causes considerable family distress and legal cost.
What the OPG can and cannot do
The OPG’s role is to investigate concerns and protect the donor. It has significant powers:
- It can demand records, accounts and explanations from the attorney
- It can appoint a visitor to assess the situation in person
- It can apply to the Court of Protection for orders restricting or revoking the LPA
- It can refer matters to the police where financial abuse is suspected
What the OPG cannot do is adjudicate between family members on the basis of their views alone. A family member’s disagreement with a decision, however strongly held, is not itself sufficient to overturn it. The question is whether the attorney has acted within the law, in the donor’s best interests, and with proper authority.
How records protect you in a dispute
When a complaint or Court of Protection application is made, the first thing anyone will want to see is your records. A well-maintained decision log does several things:
- It shows the reasoning behind each decision, demonstrating you have applied the best interests test
- It shows you consulted with relevant people, including family members where appropriate
- It shows that decisions were made at the time they were recorded, not retrospectively
- It provides a clear, factual account that cannot easily be disputed
- It signals to the OPG that you have been acting conscientiously from the outset
Attorneys with comprehensive records rarely face sustained OPG action, even when complaints are made. Attorneys without records, even when they have acted entirely properly, can find themselves in very difficult positions.
The most effective response to a family challenge is not defensiveness. It is transparency. An attorney who can produce clear, dated, well-reasoned records in response to a challenge will almost always be vindicated. One who cannot will struggle, regardless of whether they have acted correctly.
What to do if you are facing a challenge
If a family member has raised concerns or you are aware of a complaint:
- Do not panic, but do take it seriously
- Compile your records, decisions, financial accounts, capacity notes, and supporting documents
- Consider taking legal advice from a solicitor experienced in Court of Protection matters
- Respond promptly and cooperatively to any OPG enquiries
- Avoid retaliatory or defensive communications with family members
- Keep a record of any correspondence relating to the dispute
Be ready before a challenge arrives
Wardly keeps a tamper-evident record of every decision, with timestamps, reasoning, and consultation notes. When a challenge comes, your records speak for themselves.
Start your free logFrequently asked questions
Can a family member have the LPA revoked if they disagree with my decisions?
Not simply because they disagree. The Court of Protection will only revoke an LPA if it finds that the attorney has acted improperly or contrary to the donor’s best interests. A disagreement between family members is not, in itself, grounds for revocation.
What if the donor is capable of expressing a view? Does that override mine as attorney?
If the donor has capacity to make a specific decision, the LPA is not in use for that decision and you should follow their wishes. If they lack capacity, their previously expressed wishes and values are a very important factor, but the final decision is yours to make in their best interests.
What if another attorney and I cannot agree?
If the LPA requires you to act jointly on all decisions, any disagreement is a real problem. You may need to seek legal advice or make an application to the Court of Protection for guidance. If the LPA allows some decisions to be made jointly and severally, you may be able to act independently on some matters.
Can I be sued personally by a family member?
A family member can apply to the Court of Protection for orders, including orders requiring you to repay funds if financial mismanagement is found. They cannot sue you in a standard civil court simply because they disagree with your decisions, but they can make life very difficult through the Court of Protection route.