The Importance Of Choosing Your LPA Attorney Wisely
With an ageing population and the rise of dementia related illnesses, many people worry about how they will handle their affairs in the event that they become incapable of doing so in the future. A Lasting Power of Attorney (LPA) is a legal document which gives another person, known as an attorney, the authority to make certain decisions for you in the event that you lose capacity. These decisions can relate to your finances and/or your health and welfare. If you grant an LPA, you are referred to as the donor.
An LPA is a very valuable tool which I would strongly recommend all adults, irrespective of age, seriously consider entering into to protect them in the future. However, it is very important that careful thought is given to selecting the attorney or attorneys that you wish to appoint. Being an attorney is a position of great responsibility with strict duties and so a donor needs to make sure that they fully trust their attorney to look after their affairs and act in their best interests when making a decision on their behalf.
It is very common, and often sensible, that the attorneys appointed are the children of the donor and/or a close family member. For the vast majority of people, this works perfectly well. Family members tend to want the best for the donor and already know what their wishes are and what they would like to happen to them. They are happy to take on the role free of charge and they tend to be local to the donor. They may already be assisting the donor with managing their finances e.g. being named on the bank account.
However, just because someone is a child of the donor or a family member, it does not automatically follow that they are the most suitable choice for the role of attorney. Some people may not want to be an attorney, though they may never express the same, fearing that they will upset the donor. They may not have the time or the inclination; they may find it too emotional or stressful to make decisions on behalf of their parents; the attorneys may be elderly themselves by the time the LPA is registered or in ill health. Perhaps they do not get along with their siblings and do not want to have a battle with them over the decisions that they will have to make. Unfortunately, though being perfectly suitable on “paper” some family members can fail the donor, such is human nature. They may not always get it right, either intentionally or not. There is a mechanism in place to protect a donor from an unsuitable attorney. The Office of the Public Guardian (OPG) oversees attorneys and can investigate complaints or concerns about them e.g. misuse of money or decisions that are not in the best interests of the person they are responsible for. They can make rulings which an attorney should follow (e.g. repay monies that they may have taken). In extreme cases, the OPG can apply to the Court of Protection to have the LPA revoked and the attorney removed.
In the case of an 89 year old lady who suffered from dementia who made an LPA in favour of her gardener, concerns were raised about the gardener’s actions as her attorney. The OPG investigated and subsequently applied to have the LPA revoked on the grounds that the gardener had behaved in a way which contravened his authority and he was not acting in the donor’s best interests. He had gifted himself £38,000 from the donor’s estate (a big “no no” for attorneys!) and failed to keep proper accounts. As the LPA was revoked, a professional Deputy had to be appointed to manage the lady’s affairs going forward at a cost to the estate.
Some children who are appointed attorneys do not necessarily act in the best interests of their parent. In one such case, the donor appointed her youngest son, Ray, to be her sole attorney under two LPAs, one for property and affairs and one for health and welfare. The donor had another son, Karl. He was not appointed as an attorney. The two LPAs were registered in 2008 and 2009 respectively. Two months prior to the LPA for property and affairs being registered, the donor had apparently made a new Will in which she left her entire estate to Ray with specific provisions as to what should happen to the estate if Ray predeceased her.
In August 2008, the donor was diagnosed with dementia and her condition quickly deteriorated. Several reports were made to the OPG by Karl about Ray’s behaviour. Ray had only visited his mother once in a year and had delegated his authority as an attorney to his niece, Fatima. Ray had promised to pay Fatima to assist him but he failed to do so. Karl also made allegations regarding the validity of the 2008 Will as well as a trust that had been made in relation to the donor’s property for the benefit of Ray. Karl had also claimed that his mother’s signature on the LPAs was in fact false and it was likely that at the time she had executed them, she already had advanced dementia and so could not have understood what she was signing. The OPG investigated the concerns and Ray subsequently agreed to be removed as his mother’s attorney. Fatima was appointed as her Deputy to manage her property and affairs however, the Court of Protection ruled that there was no requirement for a health and welfare Deputy to be appointed, as the day to day welfare decisions could be made by family members.
These cases highlight not only the need to consider making LPAs at an early stage before there is any issue about a donor’s ability to execute one, but also reiterates the importance of giving proper care and thought as to who should be an attorney. The donor should choose someone who they trust will act in their best interests at all times. This may not necessarily be a close family member who may have conflicting views to the donor or a vested interest in having control of the donor’s estate.
It is important that a solicitor experienced in LPAs and private client matters is instructed to prepare the LPA. A good solicitor should always discuss fully with the donor about the appropriateness of a proposed attorney and whether the donor truly believes that they are the most suitable person to act. If a solicitor prepares an LPA it can also reduce the ability for someone to question the validity of the LPA in the future.
At Tilly Bailey & Irvine we have a specialist private client team who can advise on all issues concerning LPAs and Court of Protection matters.