A Lasting Power of Attorney (LPA) is a legal document in which you appoint people to be your attorneys, to make decisions of your behalf, usually in the event you are unable to do so yourself, for example because of ill health or frailty on old age or where you are still able to make decisions but would prefer for your attorneys to help you.
A Lasting Power of Attorney can generally be very useful when planning for the future and we would always suggest you consider them when making or updating your Wills, but it is also important to be aware that there can sometimes be risks involved.
[The Care Quality Commission (the independent regulator of health and adult social care in England) has recently estimated there were 13,000 investigations of potential financial abuse between 2013 and June 2017. It has also been estimated that 1 in 10 older people suffer from financial abuse.]
An attorney was appointed under an LPA in 2013, her brother later became involved 2015, upon checking his parents’ financial position, he discovered that she had taken around £50,000 from their parents leaving them with little, therefore he reported the matter to the Police. When interviewed by Police, the attorney apparently said she had taken the money from her parents so that her brother could not inherit any of it. She was jailed for 2 ½ years.
Another attorney (a carer), was recently convicted for taking £5,500 from her 93 year old victim by making a series of withdrawals from her accounts using a Lasting Power of Attorney (LPA). The court commented that the attorney had access to the victim’s assets and that the victim’s “faculties were fading and she was extremely vulnerable”. She was jailed for 10 months.
Whilst convictions were made in these instances, this will not always be the case, and many instances will be undetected. Furthermore, even if the fraud is detected it may not be possible to recover any stolen money. However, LPA’s are very useful tools as you can choose in advance who will act for you. They are also much more flexible, cheaper and easier to use than the alternative (application to court for a deputyship order) if you lose the ability to manage your affairs until having made an LPA.
Therefore, before making or updating an LPA it is important to consider the following questions:
- How well do you know your attorneys?This may seem like a simple point, but sometimes attorneys are appointed without much consideration or research. If your attorney is a relative or friend, how well do you really know them? Do you think their personalities or circumstances are likely to change? Have they previously been made bankrupt, had financial problems or have a criminal conviction? If you are appointing a professional, it may be advisable to enquire about any complaints which they have received in the past. An internet search might assist in that regard.
- Are your attorneys likely to be able to work well together?Attorneys are sometimes asked to make difficult decisions on your behalf. If you appoint family members or individuals who do not speak to each other or are likely to have very different opinions, they may find it difficult to deal with your affairs.
- Are your attorneys aware of their duties?It is critical to check whether or not your attorneys are happy to adopt the role. For example, if they do not have sufficient time to deal with your affairs, then problems may arise. Some people may not want that level of responsibility, are therefore it would not be advisable to appoint them.
- Are your financial circumstances complex?You may need to consider instructing at least one professional attorney who will be able to deal with any issues such as tax.
- Are your attorneys likely to carry out your wishes, or will they have their own agenda?Whilst it is an abuse of their position and ultimately theft, in some cases, an attorney might misuse assets for their own financial gain. On the other hand, attorneys may not behave fraudulently but might make decisions based upon their own wishes, rather than those of the donor (the person making the LPA).
- Have you discussed your wishes with your attorneys?It is important to clearly communicate with your attorneys your wishes whilst you are in good health, as they will be making decisions which could significantly affect you in the event that you are unable to deal with those issues yourself.
- Have you let anyone else know about your wishes?You can try and prevent an attorney from abusing their position by ensuring others know your wishes. You can also add provision in your LPA to oblige your attorneys activities to be monitored and supervised by third parties. This may be your solicitor, a family member or a friend. If an attorney then later deals with your affairs in a very different way to that which you have instructed, this may alert others to ask questions and keep a closer eye. It is also important to remember that attorneys are accountable to the office of the Public Guardian and Court of Protection and must provide information to the latter when requested to do so.
So why would anyone make a Lasting Power of Attorney?
It is important to remember when seeing news articles regarding Lasting Powers of Attorney and financial abuse that most attorneys do a useful and excellent job. LPAs can be an effective way of ensuring that, should you become mentally incapable of making certain decisions, there is someone who can assist you with a wide variety of issues, ranging from paying your monthly bills to liaising with medical practitioners about your future care, and are usually a preferable option to the deputyship order.
How to make your Lasting Power of Attorney?
You can make your LPA yourself without obtaining legal advice. However, because of the importance of ensuring that you have appointed appropriate attorneys and without suitable safeguards, and also to ensure that the LPA is registered without problems and then to ensure that the registered documents are safely stored to prevent you authorising your attorneys acting until the correct time. We believe it is sensible to obtain legal assistance in making your LPA.
If preparing for the future is a concern of yours, we are pleased to advise you in relation to your Lasting Power of Attorney and Will needs. At Jordans Solicitors we are proud to be a member of the Law Society’s Wills and Inheritance Quality (WIQS) Scheme. We also have specialist solicitors who are members of STEP (the Society of Trust and Estate Practitioners). Jordans Solicitors is also recognised as a Dementia Friendly firm with many of our staff being Dementia Friends. We can also assist with other issues such as Wills or dealing with probate issues after death. Our wills and probate solicitors are based in Wakefield, Dewsbury, Selby and Horsforth. Feel free to call us on 0330 300 1103 or request a call back.