25 August 2017 by Olivia Llewellyn

Who do you trust to be your attorney and what you need to consider?

A Lasting Power of Attorney is an important legal document that enables you (the Donor) to appoint someone (your Attorney) to act on your behalf in relation to your property and financial affairs and health and welfare matters, should you not be able to deal with such matters yourself at some point in the future. 

Recently a retired senior judge raised his concerns following an unfortunate case where a Donor appointed his neighbour as his only Attorney and the neighbour subsequently abused his position and started using the Donor’s assets for his own personal gain and not the interests of the Donor as is required by law.

The benefits of an LPA are invaluable when you appoint trustworthy Attorneys. If you do not have an LPA in place and you lose mental capacity then the only way another person can look after your finances is by way of a court order (called a Deputyship) which is an expensive and lengthy process and you would not have any control over who is appointed.

The case demonstrates the importance of choosing Attorneys that you trust implicitly and what you should consider before choosing one.

  • Your Attorney should be a person you trust and know well. You need to have the belief that they will act in your best interest if you are unable to make decisions yourself.
  • Your Attorney should ideally be financially competent so if, for example, one of your children is not good at managing money you may want to avoid appointing them as your Attorney for your finance and property LPA.
  • It is good practice to appoint more than one Attorney so the opportunity for abuse is minimised. You then need to decide how the Attorneys are to exercise their decision making power together i.e. jointly, jointly and severally or jointly for some decisions and jointly and severally for other decisions. It is advisable to take advice from a solicitor so you understand the differences and choose the best option.
  • You need to decide when your LPA becomes effective, again advice on the options should be sought.
  • You should consider whether you would like to ‘instruct’ your Attorney on how to act in your best interests or whether to afford them more discretion by including ‘preferences’ which they do not have to follow but should keep them in mind when exercising their power under the LPA.

Also remember that if you already have an LPA but are no longer sure that your Attorneys will act in your best interests, you are able to cancel your LPA at any time while you still have mental capacity. A government body called the Office of the Public Guardian (“OPG”) also exists to help safeguard vulnerable people. The OPG can for example investigate, once notified, any Attorney who may be acting suspiciously with regards to their use of the LPA and they can also prevent the LPA from being registered.

If you would like further assistance on selecting your Attorney or are looking to make a Lasting Power of Attorney please contact our Wealth and Estate Planning team at WEP@boltburdon.co.uk.

You can also contact one of our solicitors in the Wealth Planning team here.

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