Who should you consider appointing under a Lasting Power of Attorney?

The recently reported case of Robin Morris, who was handed an 18-month suspended sentence for using a Lasting Power of Attorney to steal so much from his mother there was no money left for her funeral, is a solemn warning to attorneys who breach their duties and to those making a Lasting Power of Attorney to give careful consideration as to who they appoint.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney gives authority to someone else to make decisions on your behalf if you lack the necessary mental capacity in the future.

If you lose capacity to manage your finances and have not made a Lasting Power of Attorney, potentially any assets or property that you own in your own name or jointly with anyone else (even a spouse or civil partner) could be frozen. To deal with your assets, an application to the court will be needed for a Deputyship Order. It often takes around 6 months to obtain a Deputyship Order, which is a costly and paper heavy exercise. Once a Deputyship Order is granted, it is likely that the Deputy will need to submit a return to the court every year stating what you own, your outgoings and your income and a fee may be payable to the court to review the return.

As a result, it is preferable to make Lasting Powers of Attorney now while you have capacity, which will considerably ease the burden on your loved ones. It will also allow you to say who should make decisions for you, when and how.

What is an attorney?

An attorney is the person who will make decisions on your behalf if you lack capacity to make a decision for yourself. Your attorney must follow the principles of the Mental Capacity Act 2005 and have regard to the Code of Practice which forms part of that Act. This provides that your attorney:-

• must assume that you can make your own decisions (unless they establish that you cannot do so);
• must help you to make as many of your own decisions as you can;
• must not treat you as unable to make a particular decision unless all practicable steps to help you to do so have been made without success;
• must not treat you as unable to make a particular decision simply because you make an unwise decision, or one which they would not make themselves;
• must make decisions on your behalf (in your best interests) when you are unable to make the decision in question; and
• before making the decision or acting for you, must consider whether they can make the decision or act in a way that is less restrictive of your rights and freedom but still achieves the purpose.

Further information and a copy of the Code can be found at: https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice

Who should I appoint as my attorney?

You can ask anyone with mental capacity aged 18 or over to be your attorney. When making a Lasting Power of Attorney for decisions about your finances and property, your attorney must not be bankrupt or subject to a debt relief order. Consequently, you could choose to appoint your spouse, civil partner, partner, family member, close friend or a professional such as a solicitor as your attorney.

If your attorney is not a solicitor, you must have absolute trust that they will respect your views and will act in your best interests. It is also important that you consider whether your attorney will have the expertise to make decisions about your finances or welfare and know when to seek legal or financial advice.

Should you appoint more than 1 attorney, you should choose people who will work well together. If your attorneys cannot agree on a course of action to be taken on your behalf, no decision can be made and the Court of Protection may become involved. This was considered in the recent case of Re KC [2020] EWCOP 62 even before a Lasting Power of Attorney had been completed. The donor (the person who made the Lasting Power of Attorney) appointed her 4 children as her attorneys.

In that case, one of the children had a fractious and acrimonious relationship with her siblings. As a result, the court believed that the children would not be able to act in their mother’s best interests by working and making decisions together, despite all of the children having their mother’s best interests at heart. The Court of Protection chose to cancel the Lasting Powers of Attorney having found that the children would not behave in way that would be in the best interests of their mother. Instead, it was ordered that an independent professional deputy (known as a “panel deputy”) should be appointed. The costs of the proceedings had to be met by the donor.

By appointing solicitors as your attorneys or in conjunction with other people you trust, you can have confidence that your views will be respected and decisions made in your best interests. It is also far less likely that there will be expensive disputes about your finances or care that might have to be paid by you.

Contact our Lasting Power of Attorney solicitors

If you would like more information about Lasting Powers of Attorney, get in touch with one of our teams in Winchester, Alresford, Sunningdale or London. Alternatively, you can contact us by telephone on 01962 841041 or email info@taylorfordyce.co.uk.