Lasting Powers of Attorney: friend or foe?
This week, Lasting Powers of Attorney have gained widespread media attention following the comments of retired senior Judge Denzil Lush.
Judge Lush says that people should be far more aware of the risks and has said that abuses of such documents can have "devastating" effects on family relationships. Judge Lush compared the document with a Deputyship Order which is subject to far more scrutiny, such as the requirement of annual accounts and a surety bond.
What is a Lasting Power of Attorney?
- A Lasting Power of Attorney is a legal document which allows someone you appoint (your Attorney) to make your financial decisions when you can no longer do so. For example, paying utility bills and purchasing things you require.
- Last year, almost 650,000 applications were made to register the document and there are 2.5m currently registered.
In light of Judge Lush’s comments should people stop making Lasting Powers of Attorney?
Whilst safeguarding issues can be a concern in some cases, for many individuals Lasting Powers of Attorney serve as a vital document for families. They can provide control and normality to families who face times of uncertainty as a result of diseases, such as dementia.
Therefore, whilst we don’t think people should stop making Powers of Attorney, we would always advise our clients to consider the following when making the document:-
1. Choose someone you can trust. If possible, have more than one Attorney acting on a joint and several basis. If you have concerns regarding family members or friends, it may be more appropriate to appoint a professional Attorney, such as a solicitor.
2. Notify someone. Historically, notification that you were creating a LPA was a legal requirement however this is now "strongly recommended." We would always advise that being open and transparent is important and that, where possible, an independent friend or relative is notified.
3. See a Solicitor and obtain legal advice. We often see Lasting Powers of Attorney being obtained without proper legal advice. It is vital that you understand what a LPA entails and that a solicitor explains to you the options you have available when making such a document.
If you are an Attorney or thinking of agreeing to become an Attorney:-
1. Keep accounts. Whilst this isn't a legal requirement we would advise that keeping a transparent account of your role as an attorney will help safeguard you and the donor
2. Know your role and its limits. If you are under any doubt about whether your role as an Attorney allows you to do such an action - contact the Office of the Public Guardian. It may be that an application to the Court is necessary to consider whether such actions are appropriate.
3. Do not intermingle your funds. Remember that you are an Attorney and must act in the best interests of the Donor.