Judge Denzil Lush talks about devastating effects on family relationships arising from Lasting Powers of Attorneys (LPAs), or rather the lack of safeguards in the system. The point here however is not so much a problem with the system but a problem with advice, including advice given by some lawyers.
Of course you can register an LPA without taking legal advice, just like you can buy a leasehold flat without using a property lawyer, but most people in their right minds just wouldn’t consider it. That’s because there is far too much at risk, and without the right legal knowledge you’re likely to get yourself into deep water. So too when making an LPA.
But here’s the sticking point for me. I’ve read far too many horror story articles and seen far too many clients where the donor (the person making an LPA) has taken legal advice, and it’s fallen far short of what should be expected in the profession. Client’s should be made aware of all the risks involved when making an LPA, and the benefits of using the safeguard options the LPA allows the donor to take.
Firstly, and in no particular order, appointing more than one attorney. Attorneys can act as a check and balance for each other and whilst many tend to choose people that are in their close circle, thoughtful consideration needs to be given to their suitability. Fail to appoint replacement attorneys at your peril; what if the attorney(s) you’ve chosen can’t act when needed to?
Secondly, appointing the right certificate provider. This is a person who knows the donor well or is a professional and can verify the identity of the person making the LPA, that they understand the consequences of their decisions, preferences and instructions, and their mental capacity. The certificate provider has a very important job to do and needs to understand what’s at stake.
Thirdly, making sure that the appropriate people are notified that you’re making an LPA, so that they can contact the Office of the Public Guardian to object where they have concerns or suspect abuse. This is super important though all too often donors leave this blank believing the people that ‘need’ to know are already acting as their attorneys.
Lastly, the application form allows the donor to detail ‘preferences’ that they would like to happen if possible. Preferences are not legally binding but attorneys should bear them in mind, and if there is a difficult choice to make but the best option doesn’t fit the donor’s preferences, attorneys can decide on it. By contrast, the donor can stipulate ‘instructions’, which are legally binding and if not followed can be challenged in the Court of Protection. Proceed with caution here as both can have profound consequences if not given the due consideration they deserve.
The above examples are not an exhaustive list but rather a few illustrations of the kind of protection a donor needs to think about before making any decisions. Much like my example above of buying a flat and sifting through the lease yourself to determine what to do with some onerous provision, quality advice is of the utmost importance and your lawyer needs to spend time with you going through everything in fine detail. You should expect attendance notes confirming the content of your conversations referring to the above points, and correspondence highlighting areas you need to pay special attention to.
Most importantly, whilst in life we can rarely proceed without any risk at all, you should only register your LPA once you fully understand the consequences of what you are doing, and just as important, the risk of doing nothing at all. And that, is what your lawyer is for.
This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.
Penn Chambers Solicitors
0207 183 1485