Think care­fully be­fore de­cid­ing to grant power of at­tor­ney

Yorkshire Post - Property - - PROPERTY - Sharon Dale

LAST­ING Power of At­tor­ney (LPA), al­lows you to ap­point some­one to make de­ci­sions on your be­half should you be­come in­ca­pable of do­ing so, and it is not some­thing that should be taken lightly.

Sh­effield-based Ox­ley & Coward Solic­i­tors LLP is ad­vis­ing peo­ple con­sid­er­ing LPA to seek pro­fes­sional ad­vice, as re­cent cases demon­strate that the wrong choice of at­tor­ney, or leav­ing the de­ci­sion too late can have far reach­ing con­se­quences.

LPAs or EPAs (En­dur­ing Pow­ers of At­tor­ney) are reg­is­tered at the Of­fice of the Pub­lic Guardian (OPG) and a re­cent case (Re Buck­ley) be­fore Se­nior Judge Lush of the OPG high­lights some of the dangers an il­lad­vised, hasty ap­point­ment of the wrong at­tor­ney can all too of­ten lead to. Even those with the best in­ten­tions do not al­ways un­der­stand their du­ties, while at the worst, you risk pro­vid­ing the un­scrupu­lous with a blank cheque book to make free with your money.

In Re Buck­ley, the LPA was re­voked by the Judge (af­ter the LPA donor lost their ca­pac­ity to make de­ci­sions) af­ter the ap­pointed at­tor­ney (her niece) in­vested nearly £90,000 of the donor’s money in a risky rep­tile breed­ing busi­ness and had taken nearly £45,000 of the donor’s cap­i­tal too.

“The most im­por­tant obli­ga­tion of an at­tor­ney is to act in the donor’s best in­ter­ests,” said Ox­ley & Coward ex­pert Caro­line Carter. “Judge Lush clearly felt this was not the case here and while the LPA was re­voked, the dam­age by this stage can al­ready have been done.”

Judge Lush said there are: “two com­mon mis­con­cep­tions when it comes to in­vest­ments. The first is that at­tor­neys un­der an LPA can do what­ever they like with a donor’s funds.

“And the sec­ond is that at­tor­neys can do what­ever the donors could – or would – have done per­son­ally, if they had the ca­pac­ity to man­age their prop­erty and fi­nan­cial af­fairs.”

The donor in this case may or may not have wanted to in­vest in this way but the point is, it is the at­tor­ney’s job to act in the donor’s best in­ter­ests and a risky in­vest­ment in rep­tile breed­ing could hardly be de­scribed as such. Judge Lush gave some fur­ther use­ful ad­vice that it is worth quot­ing in full:

“The donor’s money and prop­erty should be kept sep­a­rate from the at­tor­ney’s own – or any­one else’s. So far as prac­ti­ca­ble, any in­vest­ments should be in the donor’s own name.

“A spe­cific ap­pli­ca­tion to the OPG should be made if the at­tor­ney wishes to: make a loan to the at­tor­ney or mem­ber of their fam­ily; make an in­vest­ment in the at­tor­ney’s own busi­ness; en­ter into a trans­ac­tion for the donor at less the mar­ket value; or to en­ter into any other ar­range­ment where there is a ‘con­flict of in­ter­ests’ be­tween the donor and the at­tor­ney.”

“While much of this is good com­mon sense, ap­point­ing the right per­son to be your at­tor­ney if you are con­sid­er­ing an LPA in the first place is es­sen­tial,” said Ms Carter. “A so­lic­i­tor’s ex­pe­ri­ence can prove vi­tal in guid­ing you through the de­ci­sion mak­ing process on your choice of at­tor­ney, their pow­ers and pre­par­ing and reg­is­ter­ing the LPA.”

The wrong choice can lead to many of the is­sues de­scribed above, not to men­tion fam­ily feuds. Choos­ing a po­ten­tial at­tor­ney needs care­ful con­sid­er­a­tion. It must be some­one you know well and trust to act in your best in­ter­ests. Leave it too late and your af­fairs may have to go through a Court of Pro­tec­tion deputy­ship, but act in haste and you risk giv­ing some­one un­will­ing or un­suit­able a carte blanche with your money.

“While think­ing about your needs, it can be all too easy to for­get to take the needs of the per­son you wish to ap­point into ac­count too,” added Ms Carter.

“Will they be happy to un­der­take the role, do they know and un­der­stand your wishes, and are they good at look­ing af­ter their own af­fairs?”

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