24 October 2017

Lasting Powers of Attorney: one size doesn’t fit all

By Miranda Marshall, Director, Hayes + Storr

This is the third in my series of articles about Lasting Powers of Attorney (LPAs).

Many potential makers of an LPA (known as ‘the Donor’) prevaricate as they feel uncomfortable trusting, even their closest, family members or friends to manage their finances, or to make decisions about their health and welfare, should the time ever come when they cannot do so for themselves.

A major advantage of having a professionally drawn up LPA is that effective protections and guidance can be included in the LPA. Badly-worded guidance, restrictions, conditions, etc within a home-made LPA can cause problems when having the LPA registered with the Office of the Public Guardian (OPG), even to the extent of making the LPA invalid.

Increasingly, I am of the opinion that the intelligent and cautious use of preferences and instructions, in certain situations, not only gets across the personal wishes of the Donor but provides clear directions and protections.

The retired Senior Judge in the Court of Protection, Denzil Lush started a lively debate when in the late summer he went on record as saying he would not put in place a LPA for himself. He said he would prefer to go for the full Court of Protection Deputyship appointment. This is where a formal application is made to the specialist Court charged with the managing of the affairs of the mentally incapable. Few practitioners would recommend this route, other than where there are very major issues which would make it better than authority from the Court is obtained for anything other than routine administration. Applying for the granting of such authority costs £400 each time plus all the professional costs incurred. There is a long wait whilst the matter grinds its way through the Court.

So how might I restrict and manage the power of my attorneys should I become mentally incapable of managing my own affairs? This is where your specialist solicitor can provide ‘value-added’ service, and usually within their basic fixed-fee cost.

Examples of such preferences and instructions are as follows: I might wish to put a cap on the value of financial transactions (or a series of transactions within a timescale) beyond a particular sum, say £5,000, carried out by a single attorney. Transactions for more than that sum could be stipulated to require all attorneys to authorise it.

You might state that your attorneys should produce accounts annually, to be circulated among them all; and if any concerns are raised then to be audited by a solicitor or an accountant; or, you might require such an audit in any event.

With an LPA for Health and Personal Welfare, you might wish to require all attorneys to be involved with life-sustaining treatment decisions, whilst allowing more routine matters to be decided by a single attorney. Here please do bear in mind that quick decisions often need to be made and having to gather all attorneys (even with modern communication systems) might be slow and so not in your best interests.

The important thing is that your LPA can be created as a bespoke document tailored to suit your special needs and wishes and therefore truly to provide peace of mind.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.

If you would like further advice on this matter please contact Miranda on 01328 710210. If you require advice on any other legal matter please call 01328 863231 or email law@hayes-storr.com.

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