LPAs enable your Attorneys to make important decisions on your behalf.
Lasting Powers of Attorney (LPAs), whether they are Property and Financial Affairs LPAs or Health and Welfare LPAs, confer extensive powers on Attorneys.
LPAs enable your Attorneys to make important decisions on your behalf. Many people assume they can only be used if you have lost your mental capacity, but in the case of your finances an LPA can also be used if you are simply physically incapacitated, or abroad (unless you restrict that use) and indeed that is the ideal for maximum usefulness. In the case of a Health LPA, you may choose to give your Attorney powers, literally, over your life or death.
This may seem daunting, and easier not to give these powers at all – but if you don’t make that choice, and you are ever incapable, someone else will make that choice for you and it may be the wrong one! So the answer is to make the most of the potential help and to minimise the risks. How? Read on.
Great thought needs to be given as to whom to appoint as your Attorney. The obvious choice for many people might be their spouse, or one or more of their children, but this choice isn’t available for everyone, for a variety of reasons. Even where it is, the role of Attorney carries great responsibility and power. Whilst an LPA is invaluable when you need help, the wrong choice of Attorney can make it a great risk.
It is important to think the decision through in light of your own particular circumstances, because even a spouse or child may not be the appropriate choice for everyone.
Trustworthiness is the most important trait an Attorney must have. Your Attorney must always act in your best interests and in your interests only. An Attorney has the potential to make life-changing decisions for you, so you must be confident that they are trustworthy, that they will take the position seriously and will make decisions in your best interests. Sadly, this should be more of a concern for some people than it is.
An Attorney must be responsible. Think about how responsible a prospective Attorney is in their own life, or whether they have been responsible and attentive towards you in the past. Another aspect to consider is whether they have already, or are likely to have in the future, responsibilities of their own which might limit their ability to effectively manage your affairs.
Consider also family dynamics and how your Attorneys will interact with your family, or, if your Attorneys are family members, with each other. Your Attorney should consult with those close to you when making decisions on your behalf, but should have the strength of character to withstand untoward pressure from others where there might be a conflict of interests (an expensive nursing home for you? or future school fees for their children?).
Confidence and experience will also count in some situations. If your business affairs are complex and your spouse/children are not accustomed to dealing with such matters, or are too frail or too young, then you may wish to appoint someone else who is more comfortable in this area – unless you are confident that they would know when to seek professional assistance.
Age is an important consideration. If your spouse or other prospective Attorney is a similar age or older than you, it is possible they may pre-decease you or may become incapable, by reason of physical or mental incapacity, of acting for you. Therefore it is important that you consider alternative Attorneys, to either replace them or act with them in those circumstances. Similarly, age is a factor in the case of children: even if they are over the age of 18, they might still be too inexperienced or immature to take on the responsibility of managing your property and financial affairs. Furthermore, the impact of future in-laws should never be underestimated.
Competence is also a crucial consideration. With all the goodwill in the world, someone might still not have the requisite ability to manage your affairs in the way you would wish. For both types of LPAs you should be confident that your Attorney is comfortable and competent in managing your affairs. Think about how they deal with their own personal affairs, do they manage them carefully, or more importantly, successfully?
It may be that a particular individual would be very competent in dealing with health and welfare matters but not with your property and financial affairs, in which case you should appoint different Attorneys for each of your Property and Financial LPA and your Health and Welfare LPA.
What should you do?
A good idea is to play out in your mind how your Attorney might practically manage your affairs, or react in different scenarios. Often when people do this they find that the obvious choice may not be the right choice after all. At Hewitsons we have a wealth of experience both in preparing LPAs and in seeing how Attorneys deal with them afterwards, so we are well placed to guide you through the many decisions to reach the outcome that will help you, not put you at risk.
If you have not yet got the security of both LPAs, please see our guidance notes on Lasting Powers of Attorney.
If you would like help please contact one of our solicitors.
Northampton - Claire Tuohy, on 01604 463109 or click here to email Claire.
Cambridge - Amy Wallhead, on 01223 532745 or click here to email Amy.
Milton Keynes - Carolyn Bagley, on 01908 247015 or click here to email Carolyn.
London - Francesca Rossi, on 020 7400 5037 or click here to email Francesca.