Increase In Lasting Powers Of Attorney Being Registered
In her latest blog, Head of Wills and Probate Jo Robinson, discusses the increase in Lasting Powers of Attorney being registered….
The number of Lasting Powers of Attorney (LPA) being registered in England and Wales is continuing to soar, according to new data released by the Ministry of Justice.
201,121 Lasting Powers of Attorney were registered between July and September 2022, which is an increase of 19% from the equivalent quarter in 2021.
What Is A Lasting Power Of Attorney?
An LPA is a legal document which allows you to appoint Attorneys to make decisions on your behalf if you become physically or mentally incapable of making your own decisions. It is possible to make a Lasting Power of Attorney in respect of Property and Finances and Health and Welfare, although the latter can only be used when you lack mental capacity. Here are a few points for you to consider:
– Should I Appoint My Children?
Many people want to appoint their children as their Attorneys and some still think it has to be the eldest child, but is this always the best option? Firstly, consider if they are good at managing their own affairs. If you have children who can’t manage their own money, why would they be any different with yours? Secondly, do they live locally? Will it be convenient and feasible for them to act for you?
Finally, how much time do they have? Are they busy parents or career people? These practical considerations can impact upon the decision as to who is the best choice for the role of an Attorney.
– Structure Of The LPA
LPAs can, however, be set up in various ways: jointly (where all Attorneys must make all decisions together), jointly and severally (where the Attorneys can act together or independently) or a combination of the two where joint decisions are required on only certain issues. Most people elect to appoint their Attorneys jointly and severally for the sake of convenience.
If Attorneys are likely to disagree or live some distance away it could be more sensible to limit the ‘jointly’ part for major assets or decisions and leave the rest “jointly and severally”. In any event, the wisdom of appointing Attorneys who do not get on is questionable.
– Replacement Attorneys?
An LPA set up without a replacement Attorney could be problematic as the Attorney would need to be replaced if the original died, refused to act, became unwell or became bankrupt. Obviously, this would not be a problem if several Attorneys are appointed “jointly and severally”. Without a replacement, however, a Court of Protection application would be the default option and is a costly and lengthy process.
– Capacity
A proper capacity assessment is central to the production of an LPA. A solicitor will often certify capacity in straightforward cases when it is clear that there are no issues, but a doctor’s report may be required to ensure that the donor fully understands the advice or information given. If the certificate of capacity is given by a non-professional then they must fully understand what is expected of them and be prepared to justify their decision (as should a professional). Caution will be exercised when the initial request for an LPA comes from a family member, rather than the client themselves.
– Safeguards Or Protections
It is possible to build in safeguards, but people are often reluctant to include them. Preparation of accounts, limits on sale of certain items and restrictions on loans or gifts are all options. Safeguards can provide extra protection for potentially vulnerable clients. LPAs should be put in place well before they are needed and the donor’s needs and wishes should be fully understood in order to select the most suitable Attorney(s). Safeguards, however, take second place to the initial choice of an Attorney who must be trustworthy and competent.
An LPA is an important document which can ensure that you get the help you need when you need it most, whilst making the process easier for those supporting you. If someone is prepared to help then it is, perhaps, only fair that they have the right tools for the job. At Timms we are always happy to talk you through your options when you want to make life easier for those close to you.
How We Can Help
If you would like further information regarding Lasting Power of Attorneys, please telephone me on 01332 364436 or contact me at j.robinson@timms-law.com. Alternatively, visit the Wills and Probate section of our website here.
January 2023