Should I be worried about making a Lasting Power of Attorney?
Over the summer, you may have seen the headlines in newspapers warning of a lack of safeguards in respect of Lasting Powers of Attorney (LPAs), following comments made by retired senior judge Denzil Lush. Senior Judge Lush warned of the risks of financial abuse by older people who have appointed an attorney to look after their financial affairs.
The sad truth is that on occasion, attorneys do abuse their power. However, it is important to put Senior Judge Lush’s comments in context: as a judge with many years experience adjudicating cases at the Court of Protection, he will have seen some of the very worst cases of financial abuse. Still, it is important to remember that a Lasting Power of Attorney is a powerful and effective tool to allow you to appoint somebody you trust to look after your personal affairs, in the event that you lose mental capacity.
The key to ensuring your future is properly safeguarded is to take proper legal advice before embarking on the creation of a Lasting Power of Attorney by speaking to a Solicitor with experience in making LPAs.
Our Private Client team includes accredited members of Solicitors for the Elderly (SFE), which is an independent organisation of over 1,500 lawyers who provide specialist legal advice for older and vulnerable people, as well as their families and carers.
SFE has been campaigning to ensure essential checks and controls are conducted when making an LPA. Here are SFE’s top tips to ensure your lasting power of attorney is effective, legally robust and safe:
- Plan early – While you have capacity, it’s 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 can’t appoint an attorney once you lose capacity.
- Choose carefully – Think carefully about 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.
- 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. There will be cost implications involved in appointing us as your attorneys, and such costs will be openly discussed with you if you decide you might wish to appoint our firm to look after your finances.
- 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?
- 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.
- 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.
- 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.
As you can see there is a lot to consider before you create your Lasting Power of Attorney. You may understandably be feeling nervous or concerned about creating one at all, following the negative press of late, however, we are here to help you feel confident in your decision; your Lasting Power of Attorney should give you peace of mind that your affairs are in order after all.
If you wish to discuss your options for a Lasting Power of Attorney, please contact Melissa Ritchie for more advice.
If you are concerned that you or someone you care about is being financially abused or is at risk of financial abuse, you can report this in confidence to the Office of the Public Guardian, by calling 0300 456 0300.