Lasting Powers of Attorney – Why they are still viable

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Lasting Powers of Attorney – Why they are still viable

02 Sep 2017

A Lasting Power of Attorney (LPA) is a legal document which gives chosen attorneys the ability to manage the financial and property affairs, and/or health and welfare matters of the person giving the power of attorney, known as the Donor. It is ‘lasting’ because even if the Donor loses mental capacity in the future so that they can no longer manage their affairs by themselves, their attorneys can continue to do so on their behalf.

On 15 August 2017 BBC News reported on the risks of putting in place Powers of Attorney, which includes LPAs, following a warning from Denzil Lush, a retired senior judge from the Court of Protection.

The report highlighted the lack of safeguards for vulnerable adults, where unscrupulous individuals could persuade them to sign Powers of Attorney and then have access to their bank accounts or be able to sell their home.

The news item suggested that it may be preferable not to have the Power of Attorney at all. This is because if someone loses capacity but does not have a LPA, then someone can apply to manage their affairs on their behalf by making an application to the Court of Protection, known as a Deputyship, and will then be subject to a more vigorous safeguarding procedure.

In most cases it will still be preferable to put in place a LPA before losing capacity:

  • If the LPA has been registered with the Office of the Public Guardian, this is usually done straight after the LPA has been created, it can be used straightaway in the event of incapacity, thus avoiding delays.
  • The Deputyship procedure is expensive, complicated and lengthy. The delays will only increase if more cases are left to be dealt with by the Court of Protection rather than having a LPA in place in advance.
  • For most people the safeguarding concerns should not be an issue where they pick trusted family members, friends or professionals as their attorneys.  There are some safeguarding measures in LPAs. The Donor can nominate persons to be notified when an application is made to register the LPA. Furthermore, when the LPA is created, someone who knows the Donor well or a professional such as a GP or a solicitor must certify that they understand what they are entering in to. Also, the actions of the Attorneys can be restricted, for instance by limiting the LPA to certain assets or specifying that multiple attorneys must always agree on their decisions.
  • The Donor can choose who they would like their attorneys to be under a LPA. They can also appoint replacement attorneys if the original attorneys cannot act. They may wish to appoint different attorneys to deal with different assets, such as personal and business assets. If matters are left to be dealt with under a Deputyship, it is uncertain who will apply in future to deal with that person’s affairs.

If you do not currently have a LPA in place to deal with your financial and/or health and welfare matters, please contact us or call a member of our Tax and Probate team on 0161 838 7882 for a discussion.

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