Lasting Powers of Attorney - the importance of proactive planning

Wake Smith Solicitors 16 August 2017

Suzanne Porter, private client solicitor at Wake Smith, looks at how proactive planning can provide reassurance with regard to Lasting Powers of Attorney.

A Lasting Power of Attorney is a legal document which allows someone you appoint to make decisions on your behalf when you are unable to do so, either through ill-health, mental incapacity or absence, for example on an extended holiday abroad.

Those decisions might be to do with your finances or property or, if you lose mental capacity, health and welfare issues, such as where you ought to live or what medical treatment you should have.

According to statistics provided by the BBC, last year almost 650,000 applications were made to register powers of attorney and there are 2.5m currently registered. With such large numbers involved, there is always the potential for risk.

Suzanne believes that proactive planning with the help of a solicitor offers security for people who are looking to put in place arrangements to have their affairs managed when they can no longer do so for themselves.

Failure to think through the issues carefully and objectively can lead to anxiety and upset for those you love and put pressure on family relationships. At worst, it may lead to financial abuse.

She said: “Recent comments made by a former Court of Protection judge suggest that lasting powers of attorney can lead to abuse and vulnerability and may have a devastating effect on family relationships. However, involving a solicitor in advising on the terms of the powers given and the people to appoint as attorneys can go a long way in ensuring that, when necessary, your affairs are looked after exactly as you would wish.

“The important thing to consider is who are the right attorneys, people that you trust implicitly to deal with your affairs, and how you want them to act on your behalf. I make it part of my role in advising my clients to talk this through very carefully to ensure that they choose the right people for the job.

“I will also often act as a “certificate provider” – that is, certifying in the document that the client knows what he or she is doing in executing the power - and I will always see clients alone to ensure that they are not being forced to sign something against their will. I see it as my duty to make a lasting power of attorney a positive and secure thing to put in place for my clients.

“The cases which the judge was referring to were predominantly those where solicitors were not involved, and therefore potential areas for abuse were not able to be picked up in the early stages.

“If no power of attorney is put in place and you lose your mental capacity, the only alternative would be for a member of your family to apply to the Court of Protection for an order to be appointed as your deputy. Of course, you would have no say in who the deputy should be.

“Such an application is often two or three times the cost of setting up a lasting power of attorney and it can take up to six months for the order to come through, at a time when, ideally, someone needs to be acting for you in sorting out your affairs. This can result in a lot of anxiety and upset for family members as they cannot access your funds to pay bills etc. They often have to use funds from their own resources which can put a considerable strain on them and may cause family conflict.

“Of course, the costs and delay involved in the appointment of a deputy are less important than the peace of mind that you gain from having put in place yourself arrangements to have your interests looked after and protected when you can no longer do so for yourself.”

For further advice on Lasting Powers of Attorney contact Suzanne Porter at Wake Smith on 0114 266 6660 or at [email protected]

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