There has been a recent BBC article which highlights a retired judge’s views on powers of attorney, namely that there are a lack of safeguards in place for donors. Denzil Lush has expressed his view that a power of attorney can have a “devastating” effect on family relationships.
Whilst the above may be true in some cases, particularly where only some family members or friends have been made aware of the donor’s intention to register a power of attorney, in the majority of cases the truth is that donors will sit with friends and family and discuss their intentions before a power of attorney has even been drafted.
Mr Lush also holds the view that the legal alternative – the appointment of deputies by the Court of Protection itself is demonised by the appointment of attorneys through powers of attorney. This in essence places complete control with the Court of Protection which may appoint a deputy that the donor himself would have specifically chosen to exclude in his appointment through a power of attorney – The unique position with a power of attorney therefore is that the donor chooses whom he would like to manage his affairs – Not to mention it is much more costly to apply for deputyship through the Court of Protection and an application can only be made once someone loses mental capacity.
It is never apparent at the time of formalising a power of attorney document who may possess ulterior motives if and when the donor loses mental capacity, particularly when financial affairs are handled by the attorney, but attorneys must remember they ought to act in the best interests of the donor throughout their appointment and this is made clear when the power of attorney is put in place. The key is to appoint the right person or persons as Attorneys. Having an LPA drawn up by a Solicitor guides you through the process of making an LPA and one of the key points of discussion with a Solicitor is who you should appoint as an Attorney and are they the right person for the job?
The Ministry of Justice has confirmed:-
“Safeguarding vulnerable people is our priority…We take swift action if any abuse is reported and have a zero tolerance approach to any attorney or deputy who breaks the law.”
It is evident therefore that safeguards are very much in place and powers of attorney remain the legal document of choice for donors’ peace of mind. It must be remembered a power of attorney document is created by the donor himself whilst he possessed mental capacity. It therefore reflects the donor’s choice as clear as can be at the time of preparing the documents and the donor will inevitably have poured some considerable thought into the appointment of attorneys.
Lasting Powers of Attorney (Property and Financial Affairs) are very powerful documents. They can be very useful to have in place but have to be used with care. There is scope for financial abuse by an Attorney as highlighted by the BBC article. However, in general, for most people, having an LPA in place can be more of a help than a hindrance and can provide great peace of mind. You can prepare an LPA online, but the input of a Solicitor can be invaluable. It is worth instructing a Solicitor to draw up a Lasting Power of Attorney (LPA) for you. With carefully drafted LPAs, you could even include restrictions in the document, for example it can only be used if you become mentally incapable. You could also include instructions and preferences too if you are so minded.
If you would like more information about Lasting Powers of Attorney please contact either Katharine Ayris on 0191 232 2574, Helen Milburn or Andrew Steel on 01642 356500.
Source: http://www.bbc.co.uk/news/uk-40887323
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