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With an ageing population, the need for Lasting Powers of Attorney has risen in recent years.
There is a lot of advice out there about the procedure for making a Lasting Power of Attorney however there isn’t much discussion about who you should appoint as an attorney, the importance of this and what goes on once the attorney is appointed and is required to act on your behalf.
In 2019/2020 the Office of the Public Guardian (the body which overseas attorneys) investigated 3099 attorney cases. 22.1% of these cases resulted in applications being made to the Court of Protection to remove the attorney. The main subject of the investigations were relating to attorneys not acting in the best interest of the donor (the person who made the Lasting Power of Attorney) or the attorney’s making improper gifts from the donor’s funds.
With the potential reforms to how Lasting Powers of Attorney are made in the future and proposals to reduce the safeguards currently in place it is unlikely that these figures are going to reduce in the near future.
So are you reading this as an attorney or a donor?
Seriously consider your choice of attorney’s and don’t necessarily just go for the closest family member. Whilst of course, this may be the best choice for you, think about whether that person is going to be able to carry out the role you are asking them to do:
If it is a financial power of attorney, is your attorney able to manage their own finances well, are they good at record keeping, are they likely to include you in decision making if you were still able to and are they likely to act in your best interest?
If you are appointing someone for health and welfare decisions, how well does this person know your wishes and are they likely to make decisions based on what your wishes are or what they would do in your circumstances.
Its important to remember that the person you are appointing will have complete control over these aspects of your life if you lose capacity and it is therefore fundamental to make sure you have appointed the right person. Remember, whilst family members are a good starting point, there are also friends and professionals who may be more appropriate depending on your individual circumstances.
For example, if you have a business, the person you may wish to appoint as your ‘business’ attorney is probably not going to be the same person you want making medical decisions for you.
Most people, if asked, are happy to take on the role of attorney and don’t give it a second thought as they are signing the document. However, what happens when the document comes into play. You certainly wouldn’t want to find yourself inadvertently abusing your position. Whilst there is lots of advice for people putting in place powers of attorney, attorneys themselves often don’t seek advice about what they can and can’t do and the best way to go about this. There is a lot of official guidance and there are principles which must be followed, so it can be risky just to rely on “common sense” or even a basic feeling that you know what the donor would want.
Bell & Buxton can help donors and attorneys alike with advice on what to include in your power of attorney, what to consider when deciding who your attorneys should be and what you should be doing as an attorney to make sure you act in the best way possible as an attorney and use your powers in the correct way.