It seems that the awareness of Lasting Powers of Attorney (LPAs) may have increased a little in recent times since my colleague Nicola Matthews prepared a helpful overview on this topic in June 2015 (link to article here).
Recent figures show that more and more people are entering into LPAs and arranging for them to be registered with the Office of the Public Guardian.
It has been suggested that one of the reasons for this increase is due to the new online forms which seem to make the process faster and easier. Many people will be eager to get things sorted quickly but remember “more haste, less speed”. In recent months we have had a number of our clients with LPAs which they have prepared and entered into themselves, without first obtaining professional advice. When reviewing these LPAs with our clients we have found that the documents do not do what our clients’ intended and do not allow their Attorneys to act as our clients wanted.
Whilst the new forms and online system appear to be more user-friendly, the underlying legalities of entering into an LPA have not changed. In that regard, there are a number of technical nuances which mean that Attorneys may not be able to act in the way the Donor wanted, or may not be able to act at all, depending on how the LPAs have been prepared.
For example, depending on the way in which Attorneys are appointed under an LPA, if one Attorney was to die or lose capacity before the Donor, this could lead to the appointment of all named Attorneys failing.
Similarly, as Attorneys cannot delegate their powers without the express authority of the Donor, if, for example, the Donor’s stockbroker looks after their stocks and shares on a discretionary managed basis, then this may not be able to continue if the Donor was to lose capacity and no power to delegate was included in the LPA.
Whilst this may seem like a classic case of the devil being in the detail, many people entering into LPAs without professional advice also often appoint one Attorney and overlook the unthinkable scenario of their Attorney dying or losing capacity before them, resulting in no replacement Attorneys being named in the forms.
The responsibilities that are placed on Attorneys when acting on behalf of the Donor can also be very onerous. It can often be too time consuming and/or laborious for a person named as an Attorney under an LPA to act as the Attorney when the time comes. This can lead to the Attorney disclaiming their appointment which in turn can cause difficulties for the Donor, especially if a replacement Attorney is not named in the LPA, and the Donor has subsequently lost capacity.
As explained in our previous article on LPAs (link to article here), if the appointment of those named as Attorneys under an LPA fails (because the Attorney is unable or unwilling to act, or incorrectly appointed), and the Donor were to subsequently lack the required capacity to enter into a new LPA, it may be necessary for someone to then apply to the Court of Protection to be named as a Deputy.
And so we come to the point that the haste of entering into an LPA without first obtaining professional advice is resulting in some people having to suffer the often long and arduous process of applying to Court for a Deputy to be appointed due to the failure of an LPA. Even if these matters were identified before the Donor was to lose capacity, an LPA cannot simply be amended, but must instead be cancelled and a new LPA entered into. This in itself is not straightforward as it is often necessary to get the timing of registration and cancellation of the LPAs correct.
At Hay & Kilner we have a team of solicitors with specialist expertise in relation to Lasting Powers of Attorney, who can advise on the preparation, execution and registration of these documents.
For further information, please contact Alice Clewes, Partner at Hay & Kilner
Call: 0191 232 8345