The subject of Lasting Powers of Attorney (LPAs) has featured quite heavily in the news this week. There have been many discussions centred on their misuse. Indeed Denzil Lush, a retired senior Judge in the Court of Protection, has been quoted as saying that he would never sign a lasting power of attorney because it can have a ‘devastating effect’ on family relationships.
Fiona Ashworth, who leads the Wills and Estates team at Thompson Smith and Puxon (TSP), adds her thoughts to the current debate.
An LPA is a legally binding document which you can enter into whilst you still have capacity to make decisions for yourself, to give someone of your choice the power to manage your affairs and make decisions for you when you can no longer do so or, in relation to finances, when you would prefer someone else to take over the burden for you. The person you appoint to make those decisions for you is known as your Attorney and the person making the Power of Attorney is known as the Donor.
There are 2 types of LPA (find out more here) and at TSP we consider both types to be very useful. They are documents that I would recommend most people consider putting in place as they get older.
You can put an LPA in place by visiting a solicitor and taking advice but you can also do-it-yourself online. Unfortunately we do find that, in some circumstances, LPAs that are made online are open to abuse because the Donor has not received any specific advice and often does not fully understand the importance of putting in place guidance and restrictions on the use of the Power by the Attorney, so in many cases the Attorney has free access to the funds when that may not have been what was actually intended.
The online procedure, whilst not overly complicated, does faze many elderly people who sometimes struggle to follow the procedure and to complete the application form for themselves. The online system is open to abuse in that it is possible for individuals wanting to act as Attorneys to make an online application for an LPA for an elderly person and to give themselves full control, when that may not have been the elderly person’s intention.
If you were to visit us to make your LPA we would only take instructions from the Donor, not the intended Attorney. We insist on seeing the Donor on their own, to establish their capacity, and to ensure that it is their wish to appoint the person as their Attorney. The Solicitor or other legal adviser who meets with the Donor is specially trained to assess capacity, but if we have any doubts we would request that the Donor’s Doctor counter-sign the LPA, to certify that they are satisfied the Donor has capacity to enter into the document.
We also advise our clients on restrictions that they might consider putting in the LPA and ensure that the Attorney is required to keep accurate financial records, and that these can be delivered to the Court of Protection should they be requested.
In summary, don’t be put off the idea of LPAs as they are important documents to consider putting in place. Make sure, however, that you get advice from your solicitor, and do not allow anyone to set them up online on your behalf.
In addition to advising on Lasting Powers of Attorney the team can also help with Wills, Estate Administration (Probate) and Lifetime Planning. Fiona Ashworth can be contacted on 01206 217057 or by email at Fiona.firstname.lastname@example.org
Home Visits: If you are registered disabled or physically unable to get into our office to see us then we can visit you at home, in hospital or in care, and will not charge extra for travelling to see you. If it just suits you better for us to travel to see you at home then we are happy to do this but will need to charge an additional fee which we will discuss with you when you contact us.