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Are Lasting Powers of Attorney bad news?

22nd August 2017

Comments made by recently retired senior judge Denzil Lush have caused some considerable discussion around the suitableness of Lasting Powers of Attorney (LPAs).  The retired judge having effectively suggested that they do not work and should not be used.  Such comments must be looked at in context and no generalisations can be drawn from them for everyone’s circumstances. 

A LPA is a legal document in which an individual chooses who they wish to manage their affairs should they be unable to do so themselves due to lack of mental capacity.  They exist in two forms, one in which an appointment is made for someone to deal with financial matters, the other dealing with health and welfare aspects.

It is true that a LPA gives to the attorney authority to deal with an individual’s affairs and as such is possible that abuse of their position may occur.  It therefore logically follows that an individual should have complete trust in their attorney and if they would not trust giving them control of managing matters today then they should consider not appointing them at all.  Denzil Lush’s comments confirm this but he goes on to say that he would never sign one as he had never seen one work in his twenty years working with the Court of Protection.  With the utmost respect this is somewhat of a sensationalist remark to make upon leaving office.  In reality the majority of LPAs are used without issue, naturally those Denzil Lush adjudicated on were subject to dispute as it is only these LPAs that would ever come before a Court.

A LPA is still as much of an important part of estate planning as it always has been, if not more, with increasing numbers of people being affected by some form of mental impairment during their life.  If the following pointers are taken into account when the document is prepared the risk of abuse can be minimised:

1. Seek advice from a solicitor to ensure it is suitable for your needs and circumstances.  Solicitors are regulated and insured; many other providers of legal services are not.

2. Speak to your solicitor about preferences and restrictions.  These are ways that you can restrict and/or place third party checks on the way your attorneys act.  For example requiring your attorneys to maintain accounts and file these annually with an independent professional such as a solicitor or accountant.

3. Appoint more than one attorney to ensure they can assist one another and reduce the likelihood of innocent mistakes arising and keep checks on one another to ensure no intentional abuse occurs.

4. Consider appointing a professional such as a solicitor to be your attorney and manage matters on your behalf.

If these points are considered before making a LPA the risks associated with making one can be reduced.  A LPA is still a far more desirable option for many when compared with the often lengthier and more costly option of applying for a Deputyship.

Everyone’s circumstances are different and if professional advice is sought first then the most suitable option can be ascertained. 

To speak to a member of the Wills, Trusts and Probate team call 0800 590 019 to discuss your requirements. Alternatively if you would like someone from the team to contact you, email your details to info@bhplaw.co.uk

 

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