On December 14th, ITV Tonight featured a programme on Lasting Powers of Attorney (LPA) and the importance of using a specialist solicitor.
We have covered the importance of having two Lasting Powers of Attorneys in previous articles – one for Property and Financial Affairs and one for Health and Welfare.
In brief, these important legal documents allow you to appoint an Attorney to make decisions on your behalf if you are unable to do yourself, e.g. after an accident or illness or due to metal health issues such as dementia. It is important that you nominate an Attorney as it can cause difficulties for your family if you do not have this in place. For example, if you are incapacitated, then your partner and family members cannot access your bank accounts, savings etc. without going to Court.
The Government advises that anyone over the age of 50 should have an LPA to accompany their Will. We recommend that anyone over 18, especially those with assets, or single parents, should have an LPA as accidents and illnesses can strike at any time. However, it must be done properly.
Between 2012 and 2015, the Office of the Public Guardian, who you register your LPA with, received over one million LPA applications. 130,000 were considered unfit for registration. This is more than 1 in 10 applications.
If you decide to put an LPA in place, it is vital that it is done correctly otherwise it is likely to be rejected by the Courts. An LPA is a powerful legal document and we strongly advise that you ask a specialist solicitor to draw it up for you.
As we covered over the summer in our article LPAs in the News, Attorneys can abuse their position. Frank Willet who was suffering from dementia made his neighbour, Colin Blake, his Attorney in 2003. By the time, Frank’s daughter had managed to revoke the power of Attorney in 2008, all her father’s money had gone along with his army medals, her mother’s wedding ring and other valuables. Ultimately, Colin pleaded guilty to theft and was sentenced to four and a half years.
This case highlights the need to take professional advice and have a properly drawn-up LPA in place. By appointing trusted people and having a well-constructed LPA that limits what your Attorney can and cannot do and/or by appointing multiple financial Attorneys who must make joint decisions on your behalf, you can avoid any potential abuse.
Kathryn Caple, Head of Wills and Probate at Else Solicitors, specialises in Wills and LPAs. She appreciates that it can be difficult to discuss these and is sensitive to the needs of her clients.
Common Lasting Powers of Attorney Errors
Here are the 8 most common LPA errors which affect around 15% of applications:
- Using the Wrong Form
Many people accidentally complete the wrong form such as:
- Completing the wrong LPA, e.g. they completed a Health and Welfare form when they meant to use the Property and Finance form
- Mixing up their LPA applications so the Attorney they wanted to manage their Health and Welfare becomes responsible for their Property and Finance and vice-versa
- Using an out-of-date version of the LPA form
- Being Vague on Life Sustaining Treatment
Health & Welfare LPAs – if you choose to give your attorneys the authority to consent to life-sustaining treatment on your behalf, then you indicate this in section 5 by signing Option A and can then give further instructions in section 7. This is not a tick box exercise and you should be clear on your instructions. This page is treated very seriously by the Court and doctors.
If you sign option B by mistake, then your attorney will have not be able to take decisions on your behalf concerning life-sustaining treatment, even if you put further instructions about this in section 7.
- Signature Issues
There are numerous ways signatures can go wrong. They must be:
- Signed in the right order – it is clear on the form who signs first and then who next. For example, the signature page at the end must not be signed until all the other needed signatures have been completed.
- The right signatories and witnesses – in addition to your signature and witnesses, you need to have the signature of a certificate provider. There are also restrictions affecting who can witness each signature.
- Signed in pen; not pencil. Correction fluid cannot be used.
- Not dating the signatures correctly
- Mixing up or Losing Pages
People often download and print off their LPAs but fail to check that all of their pages are there and in the right order when they are printed off. It is easy for pages to go missing or to get mixed up. It is easy to mix up the pages when you are drafting your Property and Financial Affairs and Health and Welfare LPAs at the same time.
- Being Contradictory
It is quite common in LPAs for a layperson or a non-specialist solicitor to put the equivalent of “Do A” on page 1 and “Don’t do A” on page 4. This type of contradiction can make any legal document unworkable or invalid. It usually happens when appointing more than one Attorney as there are numerous options which can be confusing.
- Not Understanding the Limited Powers of Your Property and Financial Affairs Attorney
Property and Financial Affairs Attorneys can only be granted limited powers.
A Property and Financial Affairs Lasting Powers of Attorney does not allow for the maintenance of family members unless the person making the LPA has a legal obligation to look after them. This would include a husband, wife or civil partner and any children under the age of 18. You cannot include in your LPA a provision for your Attorney to be able to give anyone else money when they need it. This includes your long-term partner if you are not married or in a civil partnership.
Your Attorneys have limited powers to make gifts using your Lasting Powers of Attorney without the authority of the Court. This means that you also cannot include provisions for:
- Continuing any regular gifts being made by you when you made the LPA. For example, paying for the grandchildren’s school fees, supporting a parent or sibling financially, giving money to charity etc.
- Making gifts to reduce the impact of Inheritance Tax (IHT) on your estate
- Setting up a Trust fund for your future generations.
- Appointing Attorneys Incorrectly
If you want to appoint two or more people to be your Attorneys then you can choose whether they act ‘jointly’ or ‘jointly and severally’.
Appointing them ‘jointly’ means they must both agree before any decision or action can be taken on your behalf.
Appointing them ‘jointly and severally’ means that your Attorneys can act independently of each other without needing joint agreement
You can also appoint them to act “jointly” in certain decisions (e.g. selling your house) and ‘jointly and severally’ in others (e.g. paying bills from your bank account). However think carefully before choosing this option. Many LPAs are rejected at the point of registration because the allocation of tasks between ‘jointly’ and ‘jointly and severally’ is either not drafted clearly or does not comply with the legal requirements; for example the following stipulations would be invalid :
Attorney B can only act when Attorney A cannot. All Attorneys must agree before any property is sold.
- Not Including Replacement Attorneys
It is important that you have replacement Attorneys, especially if you only have one or if you choose them to act jointly. If you choose your Attorneys to act jointly and one of them dies, the surviving Attorney(s) cannot act because you have said you wanted them to make decisions together.
Your replacement Attorney can only start to act once your original Attorney’s appointment has ended. Their appointment can only be ended by the below “trigger events,” for example when your original Attorney:
- Refuses to act, known as disclaiming
- Files for bankruptcy
- Loses mental capacity
- (If your Attorney is also your partner) Divorces you or dissolves your civil partnership.
There are no other circumstances under which your replacement Attorney can take over and act on your behalf.
Lasting Powers of Attorney are powerful but complex legal documents and it is important that you get a specialist solicitor to help you complete one. Most Will Writers and general solicitors do not have the required knowledge and training to ensure that your Lasting Powers of Attorney reflects your wishes accurately and is legally valid.
Why Choose Else?
Else has a great deal of experience in sensitively gathering the needed information and putting both Property and Financial Affairs and Health and Welfare Lasting Powers of Attorney in place. We understand that this is a difficult process for both you and your family and we will make you feel as comfortable as possible.
You will discover that we have an enviable reputation for always going the extra mile and offering a personal, jargon free service. You can rest easy that you are in trusted hands. You will feel secure in the knowledge that our understanding and experience will ensure that you are protected and your wishes are respected.
If you would like the peace of mind that comes with having a specialist solicitor put your Lasting Powers of Attorney in place, then please contact our Head of Wills and Probate, Kathryn Caple, on 01283 526230 or at firstname.lastname@example.org.
We invite you to experience the Else difference today.