Lasting Power of Attorneys – What you need to know

Denzil Lush, a former senior judge of the Court of Protection recently commented that Powers of Attorney are open to financial abuse.  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.

A Lasting Power of Attorney (LPA) is a powerful legal document that allows a person to appoint trusted individuals to make important decisions about care and finances on their behalf, in the event of loss of mental capacity which ensures your wishes are respected.  Senior Judge Lush’s comments highlight the clear need for professional advice when considering powerful legal documents of this nature.

To ensure that your LPA are effective, legally robust and safe, here are our top tips:-

  1. 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 cannot appoint an attorney once you lose capacity.
  2. 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.
  3. 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.
  4. 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?
  5. 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. 
  6. 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.
  7. 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.

Christine Shute and her colleague Janice Courtenay are both members of Solicitors for the Elderly (SFE) which is an independent, national organisation of over 1,500 lawyers who provide specialist legal advice for older and vulnerable people, their families and carers. If you would like to get in touch for advice or assistance please contact them on [email protected] or [email protected]

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