You may have seen or heard the comments of retired senior Judge Denzil Lush concerning Lasting Powers of Attorney and why he would never sign one himself. This has prompted new and existing clients to consider whether they should retain their power of attorney or enter into one.
There is no doubt that a Lasting Power of Attorney is a very powerful document and that sadly there are instances of attorneys' abusing their power under powers of attorney. However, this does appear to be rare and can hopefully be avoided by giving careful consideration to who is going to be nominated as the attorney.
What is a lasting power of attorney?
A lasting power of attorney appoints someone or several people to act on your behalf should you be unable to do so or should you require help in implementing your financial decisions. An attorney can do anything that you can do with your finances and can sell property along with making and closing investments.
Because of this, it is arguable that the most important part of the decision-making process when it comes to powers of attorney is who is to be the attorney. You do not need to have any experience to be an attorney and frequently it is family members that are chosen. This is not necessarily a bad thing as family members are often the most involved in a donor’s life.
What’s the alternative?
Judge Lush’s suggestion was that he would prefer to rely on what is known as a deputy order. This is where someone applies to the Court of Protection, when an individual has lost capacity, for the authority to make decisions on their behalf.
While there is more protection under this scheme because the deputy has to submit annual accounts to the Court and there is also a security bond in place if the Deputy does commit fraud, the downside is that the application process is much longer, the court fees are higher and you do not control who makes the application. This can mean that you end up with the local authority applying to be a deputy on your behalf, to the exclusion of your family.
Under a Lasting Power of Attorney you, as the donor, can put in preferences and instructions to your attorney setting out how you would like them to act. This option is not available under the Deputy scheme.
This is, of course, a very brief overview, Powers of Attorney are complex and powerful documents where having correct advice can make all the difference. Should you have complicated financial situation or a complex or difficult family situation it is worth the investment in seeking professional advice into your options to provide the best protection for yourself and guidance for your attorneys.
For further advice on Lasting Powers of Attorney, the administration of estates, Wills and other private client matters, contact Anne Thistlethwaite or one of our other solicitors in Bristol by calling 0117 962 1205 or email at info@amdsolicitors.com.
