Powers of Attorney (or LPA) is a very useful document. By having one, you can appoint a person or people you trust to make decisions for you about your welfare and finances should you lose your capacity to make those decisions yourself. Losing capacity can be caused by many things such as a car crash, dementia, accident or illness.
An LPA can be set up for many things. If you lose capacity to manage your affairs, someone will need legal authority to pay your outgoings, manage your bank accounts, look after your house or possibly sell it, and consider your welfare needs. These are often thought to be legal rights of your family anyway, but it is important to realise that they are NOT. In the absence of an LPA, when someone loses their capacity to manage themselves and you are trying to look after them, you will have to make an application to the Court of Protection to gain these rights by being appointed a deputy. This is an expensive exercise and often, more importantly, can take around half a year. This causes great distress for all involved. If you become a deputy there are many years ahead of reporting and compliance to deal with as well as the day-to-day looking after of your loved one.
Simply put, it is best to have an LPA drawn up and registered with the Office of the Public Guardian to avoid needless expense and hardship.
However, LPAs can hold a danger. This is the extent to which the person appointed (attorney) can have control of your affairs. It is very important in making an LPA to consider what you want to your attorney to control and what limits of their powers you want. It is all too easy to fail to consider certain matters, such as from what time your attorney will be able to make use of your powers. Unless properly caveated, your attorney could manage your affairs from the moment your LPA is registered.
Last year, the recently retired Senior Judge of the Court of Protection, Denzil Lush, detailed how badly considered LPAs can be the tools for great abuses of position. He described how a man with dementia, Mr Willett, with no family close by, was coerced into appointing his neighbour, Mr Blake, as his attorney. Mr Blake then proceeded to use Mr Willett’s bank account for himself, culminating in selling Mr Willett’s house and personal possessions. While Mr Blake subsequently pleaded guilty to theft, the ability to recover the sums or items was minimal.
It is very important you understand what your LPA will entail and what caveats on the actions of your attorneys should be placed in your specific circumstances. Professional advice is essential.
Ann (Karen) Salmon
Solicitor, Marlborough Law Ltd