What do I need to know about Lasting Powers of Attorney?

Following the introduction of the Lasting Power of Attorney (LPA) documents in 2007, ensuring that they are drafted in a way that centres protections for the Donor of the power has always been paramount.

As most people know by now there are two different LPA’s that each individual person should have, in order to ensure that their affairs will be dealt with, should they need help.

The LPA for Property and Financial Affairs allows the Attorney to help you, the Donor, manage your money and property. You do not need to have lost capacity for the Attorney to assist you in this work.

The LPA for Health and Welfare allows your Attorney to discuss your medical and care needs with your GP and other medical specialists, when you are unable to do so yourself and have lost mental capacity.

Do I need to see a Solicitor to have an LPA drawn up?

It is always advisable to take legal advice when entering into any legally binding document, but it is not compulsory for a Lasting Power of Attorney document, and you can make an application on line.

However, using an online facility does cause legal practitioners some concern, especially where the Donor is unable to make the application themselves, or they do not know how to use a computer, and they end up asking someone else to do it for them. We deal with these concerns a bit later on in the article.

Misconceptions

There are many discussions and misconceptions going around in the media at the present time about the mis-use of Powers of Attorney.

Denzil Lush, a retired senior Judge in the Court of Protection, has been quoted as stating 'he would never sign a lasting power of attorney because ‘it can have a devastating effect on family relationships'.

Whilst we agree that this can happen in some families, we find that conflict occurs mostly where the children, or other persons wanting to act as Attorneys, have made an 'on line' application on behalf of an LPA for an elderly parent or relative.

Practically, accessing the Office of the Public Guardian website, following the necessary procedures and complete the application form is not practical for elderly people in need of a Power of Attorney.

Whilst convenient, having the documents available online mean that they are open to abuse because the Donor does not understand the gravity of the agreement. This is why it is so important to involve a solicitor who can ensure there are restrictions on the use of the Power by the Attorney. Without these clauses, in many cases the Attorneys have free access to the Donor’s funds.

When appointed to advise on an LPA, a Solicitor will refuse to take instructions from the Attorney, instead seeing the Donor on their own, to establish their capacity, and to ensure that it is their wish to appoint the person as Attorney. The witness and certificate provider should always be a Solicitor, who can assess capacity. If the Solicitor has any doubts after this meeting, they will organise for a Doctor to be the Certificate provider.

What are the benefits of seeing a Solicitor?

If you want to make sure that your chosen Attorney(s) follow the requirements of the Mental Capacity Act, and ensure that they act in your best interests, and protect your assets for your benefit, there are certain restrictions and guidance clauses that Solicitors add to the document to make it safer for you.

If you see a Solicitor, they are qualified to assess your capacity and understanding of the document and they make sure that you fully appreciate the power that you are giving to your Attorney.

Whilst seeing a Solicitor attracts costs, this work is usually undertaken on a fixed fee, which can be agreed with the Solicitor before any work is carried out.

Summary

Whilst it may seem unnecessary to use a Solicitor, it is important to take into consideration the impact of giving someone complete control over all your financial affairs. Given that this is a massive risk to you, and a huge responsibility for your Attorney, you should all be certain that you understand the legal requirements of the task you are entering into, and confident that the Attorney can meet the expectations of the Donor, when taking up their role.

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