LPAs and their risks were discussed during Radio 4’s Today programme and an article headed “Warning over power of attorney risks” appeared on the BBC website.
A Lasting Power of Attorney gives someone the legal authority to act on your behalf if you either become unable to make your own decisions, or ask that person to help you out with implementing them. There are two types of Lasting Power of Attorney – one that deals with property and financial affairs and the other that deals with health and welfare. It is a way to protect yourself and make life easier for your loved ones if you can no longer make decisions for yourself, perhaps because of a stroke, dementia, or an accident or simple frailty or lack of time.
Because you are making the choice about your attorney, you can choose someone you trust to act on your behalf and make decisions in your best interests if you are not in a position to do so. If you feel you need assistance but can still make decisions, your attorney can assist you with your property and financial affairs with your consent. Until you lose capacity the attorney should not act without your consent.
Unfortunately as the programme and article highlighted, there have been cases where attorneys have abused their powers and not acted in the best interests of the individual involved which is devastating for both the individual and their family.
However, we would suggest that the best way to prevent this is not to refuse to make a Lasting Power of Attorney but instead to make one having discussed it with and taken advice from a solicitor who is STEP qualified (Society for Trust and Estate Practitioners https://www.step.org/about-us). They can advise on the best way to draft them based on that individual’s circumstances and can give advice on including additional safeguards where required such as:
- who to appoint as attorneys;
- when to register the document;
- whether to have anyone being notified of the registration;
- whether any restrictions are included in the power; and
- where you have more than one attorney, how the attorneys make the decisions – whether together or as individuals.
Whilst discussing the instructions, the solicitor will make an assessment as to whether the individual has the capacity and understanding to provide the instructions and whether they are under any duress from family members, friends or carers to make the Lasting Power of Attorney and they can raise their concerns at that time – if necessary with the Ministry for Justice.
The Ministry of Justice has a safeguarding system in place where they can be notified if someone believes that an attorney is stepping outside of their powers and duties by not acting in the person’s best interest or misusing money. They have a dedicated team that will investigate.
If an individual does not have the capacity to make a Lasting Power of Attorney, the alternative would be for someone to make an application to the Court for a Deputyship Order showing that they are the best placed person to act on their behalf. This process is long and expensive and it may not result in the individual’s first choice being in charge of their finances.
If you would like advice on a Lasting Power of Attorney please contact Alexandra Howard on 01223 447442 or click here to email Alexandra.