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Senior Judge Advises Caution on Power of Attorney Agreements

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25th August 2017

Senior Judge Advises Caution on Power of Attorney Agreements

Elderly Couple and Lasting Power of Attorney

There has been much controversy in the news recently about Lasting Powers of Attorney sparked by comments made by Senior Judge Denzil Lush who has spoken out about the risks of creating a Lasting Power of Attorney over your property and financial affairs.

A Lasting Power of Attorney (LPA) is a very powerful document which would allow an appointed person to deal with your property and affairs (or health matters) as you would do yourself. This is why is it so important that those considering creating a Lasting Power of Attorney do so after taking advice.

Senior Judge Lush’s comments have given rise to fears that LPAs for property and financial affairs are a direct avenue for financial abuse. However, his comments must be put into context, as his 20-year career at the Court of Protection will have presented him with the very worst cases of financial abuse.

An LPA can be a positive and effective legal tool, which ensures your wishes are respected should you ever lose capacity. Senior Judge Lush’s comments should highlight the clear need for professional advice when considering powerful legal documents of this nature.

Top tips on drafting a lasting power of attorney

Solicitors for the Elderly (SFE) is an independent, national organisation of over 1,500 lawyers, such as solicitors, barristers, and chartered legal executives, who provide specialist legal advice for older and vulnerable people, their families and carers.

SFE has been campaigning to ensure essential checks and controls are conducted when making an LPA. Here are SFE’s top tips to ensure your lasting power of attorney is effective, legally robust and safe:

Plan early:  While you have capacity, it is vital that you get your affairs in order and choose the best people to manage your affairs, in case of an accident or illness. You can’t appoint an attorney once you lose capacity.

Choose carefully:  Think carefully who you want to appoint as your attorney and have an open conversation with them so they understand your wishes and what their responsibilities will include. Consider appointing more than one person as your attorney so they can share the responsibility.

Consider appointing a professional:  A family member might not always be the best person to act as your attorney. Instead, you can appoint a professional such as a solicitor. They can act as a neutral third party and make unbiased decisions that are in your best interests. Bear in mind this usually involves a cost.

Think about different circumstances:  Consider how you would like your attorney to manage your property and financial affairs in different situations. For example, are you happy for your property to be sold to pay for your care costs?

Address the difficult questions:  Your attorney might have to make difficult decisions about your health and welfare. If you have specific wishes around your care plans, medical treatment, or end of life wishes, make sure you discuss this with them and make your choices clear in your document.

Seek professional advice:  Shop-bought and online LPA kits may be suitable for those with very straightforward financial situations or with considerable legal experience, but for most people, seeking professional legal advice is the best way of ensuring that an LPA is effective, legally robust and safe.

Keep your plans current:  Make sure you keep your LPA updated if your circumstances change. Your choices around the people you want to be responsible for your finances and wellbeing may change, such as following a marriage or divorce, when children reach adulthood, or if parents pass away.

IBB offers a fixed fee service for preparation and registration of LPAs for property and financial affairs and health and welfare

If you do not appoint an attorney to manage your affairs and you do lose capacity, then it will be necessary for someone to make an application to the Court of Protection to be appointed as your Deputy.  IBB has a specialist Court of Protection team who can assist in this regard. However, the costs of making an application to the Court of Protection are considerably more than those for preparing an LPA.  It may take up to a year to progress an application which will have an impact on the incapacitated person and may place a considerable financial burden on immediate family members until an order is made by the Court. 

For advice on issues relating to LPAs, wills, trusts, probate and tax and estate planning, contact our specialist team, call us on 03456 381381 or email enquiries@ibblaw.co.uk.

Needs Dev Linda Blay

Contact

linda.blay@ibblaw.co.uk
01494 790045