It has been reported that the Government carried out almost 50% more investigations into abuse complaints regarding Lasting Powers of Attorney (LPA) in 2018. The Office of the Public Guardian (OPG) had to investigate 5245 claims that attorneys had abused their position in managing the donor’s finances.
An example of this was a case recently reported in which an attorney had treated the donor’s finances as their own effectively stealing over £25,000 (https://www.todayswillsandprobate.co.uk/main-news/charities-lost-25000-after-attorney-abuses-position/). This was only discovered after the donor’s death. These are worrying statistics when at the same time the OPG reported in their 2019/20 business plan that they are developing proposals for paperless LPA’s (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/808860/opg-business-plan-2019.pdf).
How can a solicitor help?
Whilst making LPA’s more accessible is important it is also crucial that donor’s understand the extent of the authority that they are giving to their attorneys and take professional advice in relation to how they can restrict this authority if appropriate. A solicitor can ensure that the person making the LPA is given independent advice and can draft the LPA so that instructions are included setting out how and when funds are to be used.
A solicitor can also help attorneys when acting in their role to know what they can and can’t do as they are heavily regulated under the Mental Capacity Act. For example, an attorney is very restricted in the types of gifts that they can make on a donor’s behalf and these should only be made on customary occasions (e.g. birthdays or Christmas) and should be reasonable taking into account the size of the donor’s Estate.
The importance of LPAs
LPA’s are very important documents that can save a lot of stress should the worst happen. They enable a person to choose somebody that they trust to act on their behalf should they lose capacity in the future. There are two types: finance and health. If no LPA is in place then there is nobody to make a decision on behalf of that person should they lose capacity.
This means that there will be nobody with authority to pay bills, sell property, access funds or to represent any wishes that person may have had about their treatment. When used correctly LPA’s can make life easier for those that have sadly lost capacity but also for those left to manage their affairs. Without a LPA in place it may be necessary to apply to the Court of Protection for a decision to be made or for a Deputy to be appointed to act. This is a lengthy and expensive process.