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Lasting Powers of Attorney - What Safeguards Should You Consider?

on Tuesday, 07 August 2018.

The benefits of putting a Lasting Power of Attorney (LPA) in place are compelling. Without one, there will be no one invested with the formal legal authority to help you if you become unable to manage your own matters.

The media have recently identified cases of financial abuse where some attorneys have misused their power, and it is true to say that the number of investigations into abuse of power by the Ministry of Justice has increased in the last two years. However, these can be avoided by having the right safeguards in place.

Can My Attorney Abuse Their Power?

As advisors to both people putting LPAs in place and to attorneys, we see that many of the problems which are labelled 'abuse' could be avoided if attorneys had a greater understanding of their powers and the correct way to use them. In the absence of this knowledge, it is remarkably easy for an attorney to make a genuine mistake.

For example, many attorneys are unaware that they should keep annual accounts of the financial transactions they make. This seems sensible in theory. But in practice, most genuinely-motivated attorneys just get on with the job without stopping to consider whether they should be keeping receipts or accounts of each and every transaction they make.

Another common stumbling block for attorneys is a genuine belief that that they are able to make gifts on behalf of the person they act for. In fact, this is rarely permitted under the standard terms of an LPA. Anything other than 'customary', for example Christmas or birthday gifts or, 'occasional', such as wedding gifts, are not permitted without specific approval from the Court of Protection.

Is the Appointment of an Attorney Just a Minefield and Best Avoided?

The simple answer is 'no', as long as your attorney is trustworthy and understands the breadth and scope of their powers. If they do, their appointment is likely to prove very beneficial. Clearly, the initial selection of a trustworthy attorney is key.

How Can I Best Protect Myself Against Attorney Misunderstandings or Abuse?

Although many people opt to fill in an LPA form online, this process does not provide the advice that a qualified legal advisor can give, including the parameters that you can set for your own attorney to be bound by. For example, you can specify limitations on your attorney's powers up to a certain sum or limit, or impose bars on certain actions such as the sale of your property.

Of course, someone may ultimately need to make these decisions, but large and important transactions could be referred to a nominated third party for approval, which provides just one important safeguard.

Make sure your LPA has the right safeguards in place. 

Contact us today.