If an LPA is found to have been signed without proper capacity, the Court of Protection can declare it void and the attorney’s authority ends. Concerns usually surface after registration, raised by a bank, care provider, or family member, and can lead to an OPG investigation before any final decision is made. Where the LPA is set aside, the family typically has to apply for a deputyship instead, since a new LPA can no longer be made once capacity has been lost.
A Lasting Power of Attorney can be challenged after it’s already registered, and it happens more often than families expect. Banks, care providers, or a relative who was kept out of the loop can all raise concerns with the Office of the Public Guardian (OPG), the body that oversees LPAs in England and Wales. When that happens, the attorney’s authority doesn’t just carry on as normal. The OPG can investigate, and in some cases the LPA can be suspended or set aside while questions about the donor’s capacity at the time of signing are worked through.
This post looks at what happens once an LPA is questioned after the fact, once it’s already been signed and registered, and what families and solicitors can do about it.
In this post:
- Who tends to raise concerns, and why it usually surfaces later rather than at the time
- What actually happens once the OPG gets involved
- How I approach reconstructing capacity from records that already exist
- What comes next if the LPA is set aside
When an LPA’s Validity Gets Questioned After the Fact
Most LPAs are never challenged. But when they are, it’s rarely the donor who raises it. It’s a bank that notices an unusual pattern of withdrawals, a care home that spots the attorney making decisions that don’t match anything the resident said before, or a sibling who wasn’t in the room when the LPA was signed and only found out about it months later.
In my experience, the trigger is almost always a mismatch. Something about how the attorney is acting doesn’t fit with what the family understood the donor’s wishes to be, or the donor’s condition at the time of signing turns out to have been more advanced than anyone admitted at the time.
Timing changes the picture completely. A concern raised the week after signing is a very different conversation to one raised three years into a dementia diagnosis, when the donor can no longer confirm one way or another what they understood on the day.
What Happens Once a Concern Is Raised
Anyone with a genuine worry can contact the OPG directly. This includes family members, solicitors, care providers, or financial institutions. The OPG has the power to investigate how an attorney is using their powers, and in cases involving capacity at the point of signing, it can refer the matter to the Court of Protection.
While an investigation is live, an attorney doesn’t automatically lose the ability to act, but they can face real restrictions. The Court of Protection can suspend an attorney’s powers, appoint someone else to manage decisions temporarily, or ultimately revoke the LPA entirely if it finds the donor lacked capacity when they signed it.
This is often the point where families come to me. Often nobody has done anything wrong. It’s simply that nobody kept clear, contemporaneous evidence of what the donor actually understood on the day they signed.
Reconstructing Capacity From What Already Exists
I can’t assess someone’s capacity in 2021 by meeting them in 2026. What I can do is build as clear a picture as possible from the evidence that already exists: GP records from around the time of signing, care notes, the certificate provider’s own file, and accounts from people who were present.
A certificate provider’s job is to confirm the donor understood the LPA and wasn’t under pressure to sign it. Their notes, however brief, often carry real weight. So do GP entries from the same period, particularly anything documenting a cognitive assessment, a diagnosis, or a decline that was or wasn’t apparent at the time.
What I’m looking for is consistency. Does the picture from the medical records match what the certificate provider recorded? Does the donor’s behaviour around that period fit with someone who understood a significant legal decision, or does it point the other way? A retrospective report gives the Court of Protection, or the family, something solid to work from instead of competing memories and assumptions.
If the LPA Is Set Aside, What Then
If the Court of Protection decides the donor lacked capacity when they signed, the LPA is void. It’s treated as though it never legally existed. For the family, this usually means applying to the Court for a deputyship instead, since a new LPA can’t be made once the donor has since lost capacity for that decision.
A deputyship is a different arrangement to an LPA. The Court appoints the deputy directly rather than the donor choosing them in advance, and the OPG maintains ongoing oversight of the deputy’s decisions, including an annual report. It’s a heavier process than an LPA, and one families are usually navigating for the first time while also dealing with the fallout of the original LPA being challenged.
Solicitors handling these situations often want a written, independent assessment early, both to support the deputyship application and to protect the family from further dispute down the line. Getting that evidence together sooner rather than later tends to make the whole process considerably less painful.
“Ashley is extremely experienced and qualified in helping with capacity, attorney and deputyship matters. When concerns were raised about an LPA in our family, he approached it with patience and care, taking the time to properly look into the background rather than rushing to a conclusion. His assessment was thorough and gave us real clarity.”
Rebecca
If You’re Facing This Right Now
If a bank, a care provider, or a family member has raised a concern about an LPA you’re relying on, or one you’re an attorney under, the strongest thing you can do is start gathering records before memories fade further. If you’d like an independent view on where things stand, I’m happy to have a conversation about what’s involved.
This article reflects the Mental Capacity Act 2005 as it applies in England and Wales. It is general information, not a substitute for independent legal advice or a formal capacity assessment on an individual’s circumstances.
When an LPA Comes Under Question, Answered
Who can challenge an LPA after it’s been registered?
Anyone with a genuine concern can raise it with the Office of the Public Guardian, including family members, solicitors, care providers, or banks. The OPG can investigate how the attorney is using their powers and, where capacity at signing is in question, refer the matter to the Court of Protection.
Can a bank refuse to accept an LPA?
Yes. Banks can pause or query an LPA if something about the transactions or the attorney’s behaviour raises concern. This doesn’t mean the LPA is automatically invalid, but it can trigger a wider review and, in some cases, a report to the OPG.
Does an attorney lose their powers automatically during an investigation?
Not automatically, but the Court of Protection can suspend an attorney’s powers, appoint someone else temporarily, or revoke the LPA entirely if it finds the donor lacked capacity when they signed it. Each case depends on the evidence and the seriousness of the concern raised.
Can old GP records really help prove capacity years later?
They can form an important part of the picture. GP notes, care records, and the certificate provider’s own file from around the time of signing can show whether the donor’s presentation was consistent with someone who understood the decision, even though nobody can go back and assess them directly.
If an LPA is set aside, does the family have to start again?
Yes, in the sense that a new LPA can’t be made once the donor has lost capacity for that decision. The family would instead need to apply to the Court of Protection for a deputyship, which is a different process with ongoing oversight from the Office of the Public Guardian.
