While the number of people taking advantage of a simplified online process to make a Lasting Power of Attorney is on the increase, so are the reports of abuse by attorneys. In this article, Hayley Beeching explains how and why it is important to get guidance and have safeguards in place when permitting others to manage your affairs.
A Lasting Power of Attorney (LPA) enables you to appoint someone you trust to look after your financial affairs or your health and welfare, should you fall ill or have an accident that leaves you incapable of looking after things yourself.
The process of applying has become much simpler since an online system was introduced a few years ago, which has encouraged many more people to prepare an LPA, with digital applications soaring from 14,000 in the year to March 2014 to 164,000 in the year to March 2017. Paper applications have risen also, and a total of almost 560,000 registrations were made in the year to March 2017, compared with 200,000 in March 2012.
However, with the technology that makes an LPA easier to make, there is also the potential of threat of it being easier to abuse if safeguards are not put in place.
Unfortunately, that is demonstrated by reports of a significant increase in the number of investigations into the actions of attorneys and deputies who have been appointed under an LPA. These have increased by more than 40% in the past year – 1,729 investigations were carried out in 2017-18 – up from 1,199 the previous year, according to the Office of the Public Guardian, which is responsible for administering LPAs.
While the DIY process may be more accessible, professional guidance can make the difference in ensuring adequate control on those acting as attorneys, to help avoid mistakes or in the worst case, abuse.
Here are three key things for you to think about and give you confidence when making an LPA.
Choose attorneys carefully
An attorney has far reaching powers and problems are likely to arise if they do not appreciate the role they are undertaking, or if there are insufficient checks and balances in the process.
Being granted authority may draw some attorneys into abuse of their position, with intentionally fraudulent activity, but it is just as likely to be misuse of power by family members, who justify their actions as being acceptable because they are making use of assets that will come to them in the end, or because they feel it is reasonable to have a financial contribution for what they do for their relative.
Before appointing an attorney, think about how well they look after their own finances, how well you know them and how sure you are that they will make the right decisions for you. Even where an attorney acts with the best intentions to respond to the trust placed in them, if they are disorganised or indecisive, this can impact on their ability to make good decisions, just as much as if they are self-serving.
Make attorneys accountable
You can appoint two attorneys and require that they are both involved in each decision, although that can make transactions more complicated. Another option is to appoint, alongside a family member or friend, a professional attorney whose job it would be to undertake regular checks on how matters are being handled. Alternatively, you can include a requirement within the LPA for the attorney to consult with a third party if a decision exceeds a given threshold or for specific assets. This would allow you to restrict the sale of property or investments without the input of a professional, for example.
At the very least, a clause within the LPA appointing a third party to check whether attorneys are acting within the scope of their authority on an annual basis is a good idea.
Even where there is no specific requirement within the LPA, the Office of the Public Guardian can ask an attorney to account for their dealings with any money they handle and so attorneys should be advised to keep financial statements and receipts carefully.
Give good guidance
As well as careful selection and ongoing checks on attorneys, it is important that an attorney has guidance to help them understand their fiduciary and statutory responsibilities, and how to satisfy them, at the outset.
They should appreciate how their role should be performed with reference to the Mental Capacity Act 2005 Principles and Code of Practice, particularly in how they consult with the donor of the LPA and help the donor to make their own decisions, if possible.
They should also be made aware that they must not benefit from their position or use money or property for their own benefit, whatever their relationship to the donor, and even where they imagine it would not pose a problem if the donor were not mentally incapable.
Recognising that they may need to get expert advice, whether legal, financial or otherwise, is also important, if they are to act within the reasonable standards of care and skill required by an LPA.
- Will drafting
- Review of existing Wills
- Advice re provision for children, second families, spouses and civil partners, unmarried partners and other family members
- Advice re charitable gifts
- Advice re foreign and business assets
- Advice re Will trusts
- Inheritance Tax advice
- Advice re Trust creation and ongoing management
- Preparation of trust deeds and other trust documentation
- Declarations of Trust
- Termination of trusts
Probate and Administration of Estates
- Advice re the terms of the Will or intestacy rules where there is no Will
- Obtaining values for the various assets and liabilities in the estate, notifying the various institutions and obtaining all necessary estate information
- Obtaining a grant of probate or letters of administration as appropriate
- Dealing with and advice re Inheritance Tax, Capital Gains Tax and Income Tax, liaising with HMRC
- Notifying and liaising with the beneficiaries of the estate
- Preparing a deed of variation or a deed of disclaimer in relation to the estate
- Selling or transferring the various assets due to the beneficiaries
- Dealing with foreign assets and Wills
- Advice re estate disputes and claims against an estate
“If it had not been for the EPA I would have had real problems even discussing my mother’s affairs with banks, investment companies, government departments and care providers, much less paying her bills from her account.
“Being able to supply copies of the EPA to the various parties meant they would speak to me and act on my instructions. Without it I would have had to pursue a long, complicated and expensive legal process – at a very difficult time personally.
“I would absolutely recommend planning ahead and making an LPA. It could make a huge difference to your loved ones.”
"We have now received all of the information for the deputyship. We are delighted with the outcome. I would like to take the opportunity to say thank you for your work and support. It was a difficult thing for us due to the circumstances, but you made it easy and that really helped.
Thank you also for the settlement of the account, we are very grateful. I have friends who have Autistic children and adults I will recommend you in the future".