A client recently highlighted their concern about having a Lasting Power of Attorney (LPA) after reading an article about cases of financial exploitation.
Due to the nature of LPAs, it is natural for people to wonder whether enough is being done to protect vulnerable individuals.
A Lasting Power of Attorney is a legal document that allows an individual (known as the donor) to appoint one or more trusted people (known as attorneys) to make decisions on their behalf if they lose mental capacity.
Attorneys have significant control over finances and personal decisions, thus there is potential for abuse where the wrong person is appointed or where the relationship between family members may deteriorate over time.
Whilst these concerns should not be dismissed, donors should be reassured that attorneys are under a legal duty to act in the donor’s best interests.
If no LPA has been put in place before a person loses capacity, then no one (including their spouse or adult children) automatically has the authority to make decisions on the person’s behalf.
If there is no LPA and decisions need to be made, an application to the Court of Protection for a deputyship order is required, authorising an individual to manage that person’s affairs.
As always, when dealing with the Court, there is likely to be significant delays. Applications can take many months, during which time families may find themselves unable to deal with urgent practical matters.
Furthermore, deputyship is typically more costly than preparing LPAs in advance as the process involves court application fees; ongoing annual Office of the Public Guardian (OPG) supervision fees; putting in place a security bond; the cost of a medical capacity assessment; and usually higher legal fees.
Perhaps most significantly, if no LPA exists, the individual loses the opportunity to decide who should manage their affairs. The Court ultimately decides who will act as deputy.
Deputies are subject to ongoing supervision by the OPG and may need further court approval before making certain decisions, whereas attorneys often have greater flexibility to deal with issues within the scope of their authority.
Rather than avoiding making an LPA, individuals need help to carefully consider who their attorneys should be.
Although it is possible to prepare LPAs without legal advice, instructing solicitors can be extremely valuable, particularly as a solicitor can help ensure that the donor understands the contents of the document in full and that there is appropriate protection for the client.
A person should not appoint someone as their attorney simply because they are their child or a close relative. The most appropriate attorney is someone you trust will always act in your best interests and manage your affairs with transparency.
Unfortunately, nothing can entirely eliminate the possibility of abuse but for most people, the risks of having no LPA at all are likely to outweigh the risks associated with putting one in place properly.
For further information, please contact Lucy Wright on 01732 770660 or email [email protected].
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published. We do not accept responsibility or liability for any actions taken based on the information in this article.
