Laura Willis, Associate Solicitor in Private Client Team at DBF Law

There has been some discussion in the press recently about Lasting Powers of Attorney and whether there are proper safe-guarding checks in place.  Here at Davis Blank Furniss, we advise clients about creating Lasting Powers of Attorney all of the time and discuss the advantages of having them in place. The main reason to have an LPA is of course to safe-guard your interests if you ever lose capacity and ensure that the people you know and trust are in a position to act on your behalf about matters relating to your health, welfare, property and finances if you lose capacity to make those important decisions. A Senior Judge has recently made comments questioning the safe-guarding mechanisms in place when creating LPAs and overseeing attorneys. We thought it would be useful to comment on what the Senior Judge has said about LPAs.

In terms of preparing LPAs, they are all prepared at Davis Blank Furniss after a detailed private discussion between a solicitor and the person creating the LPA to set out all of the options for choosing attorneys and all of the information about LPAs. This ensures that the person creating the LPA thinks carefully about who they choose to act as their attorneys to minimise the risk of an attorney taking advantage in their role as an attorney.

The LPA documents include safe-guarding provisions. A solicitor will always advise a person creating an LPA to name at least two people in the document so that they can oversee each other’s actions if they do ever act as the attorney.

The person creating the LPA can choose to notify people that they are creating the LPA. A solicitor will advise the person creating the LPA when to include people to notify i.e. if they are not choosing close family members as attorneys or if they are appointing professionals to act.

It is also necessary for someone independent to sign the LPA to certify that the person creating it understands it, is not being unduly influenced and has capacity to create the LPA. If Davis Blank Furniss are advising, then a solicitor will sign to certify that is the case and if there are concerns, then the solicitor can identify those concerns as appropriate.

The registration process itself offers safe-guarding checks. The Office of the Public Guardian maintains a central register of all LPAs and can refer any matters of concern to a Court if necessary. The OPG will write to the person creating the LPA and the attorneys during the registration process. Those persons, and any other persons to be notified, will have a statutory period to raise any objections or concerns about the LPA. Attorneys can only act under an LPA if it has been registered and the person creating an LPA can cancel theirs at any time if they decide that they want to change their attorneys.

A person acting as an attorney must follow the Lasting Power of Attorney Code of Practice, which is underpinned by the Mental Capacity Act 2005. If they do not and if they neglect their duties then they can be found guilty of a criminal offence with possible imprisonment. The Office of the Public Guardian can receive reports from third parties about persons whose affairs appear to be at risk and they will make enquiries that may ultimately result in an attorney being removed altogether if necessary and possibly pursued with a criminal offence. It may also be of reassurance to know that the Office of the Public Guardian can report concerns to another agency, such as the police or social services, if it think it’s appropriate.

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