There are a number of reasons why we suggest taking legal assistance for not only the preparation of these legal documents and applications, but also taking advice in respect of what duties someone has as an Attorney or Deputy. Here are just some examples of things to consider which someone acting without legal advice may have not considered.
Your duties as lasting power of attorney or Court of Protection deputy
Attorneys and Deputies have certain duties they must undertake, under law and best practice. Are you aware of these?
Firstly they must act in accordance with the terms of the Power or order of the Court, whether this is a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA) or a Deputyship Court Order.
The most common issue for Attorneys and Deputies, is not understanding their duties which the Court will consider to be no excuse should problems arise. For example, most Attorneys register a power with the Court and begin acting under it without a full understanding of their duties potentially putting themselves in a vulnerable position.
A simple yet often forgotten duty is to ensure the Donor’s money is kept separate from the Attorneys. This may appear obvious, however this is often overlooked when the Donor is the Attorney’s spouse or civil partner.
In extreme circumstances failure to understand your duties as an Attorney or Deputy fully could lead to the removal of you as Attorney or Deputy.
Starting point – consider capacity
Before even beginning to consider preparing the paperwork to make an LPA or a Deputyship application, the issue over mental capacity needs to be considered. We strongly recommend seeking a medical opinion if there is doubt as to whether someone has capacity to make an LPA. We are finding that some General Practitioners are not prepared to make such an assessment leaving us to instruct a specialist assessor.
It is important to note that in accordance with the principles of the Mental Capacity Act 2005 there is a presumption of capacity and all practicable steps should be taken to help the Donor make decisions. Mental capacity is decision and time specific.
We see some clients who have borderline capacity and great care needs to be taken to establish whether or not the best route is the preparation of an LPA or a full Deputyship application.
Has a Power of Attorney been made before?
When having a LPA prepared, it is important to consider whether you already have either a LPA or EPA in place. It must be clear whether or not your intention is to revoke your previous power. Failing to do this could potentially lead to uncertainty of Donor’s intention, confused Attorneys, and disagreements between Attorneys.
You will be supervised
The Office of the Public Guardian (“OPG”) is responsible for supervising and supporting Attorneys. If anyone has concerns about an Attorney, such as financial abuse or an Attorney not acting in the Donor’s best interests, they can raise their concerns directly with the OPG. The OPG may at any time require the Attorney(s) to provide accounts and records of decisions they have made.
With regards to someone acting as a Deputy they can only ever act in accordance with the provisions clearly stated in the Court order. They will be called upon to produce annual accounts confirming all income and expenditure which will be inspected by the Court.
Your position could be challenged
Challenges can be brought if the LPA is not legally correct, if the person making the power does not have mental capacity to make an LPA, if the Donor was pressured into making the power via undue influence from a third party or if fraud is suspected.
Although nothing can prevent someone challenging an LPA, having a legally correct LPA prepared by an experienced lawyer can help prevent the power being challenged. The lawyer would carefully obtain the full background of your circumstances to ensure they take the necessary measures to assist in potentially defending any challenge made as to the validity of your LPAs.
When making a Deputyship application the process involves informing relatives of the application and what decision we are asking the Court to make. Again anyone can try to challenge the application, however having legal guidance and advice would help give certainty to those individuals that matters are being handled correctly.
Other complicating factors
Further consideration should also be given to any jointly owned property. For example, this may involve a further Deputyship Order to appoint a new Trustee to be on the legal title before a property can be sold (if necessary). Another matter to consider is whether the Donor has any foreign assets? If so consideration will need to be given to the LPA and Court Order to ensure Attorneys or Deputies can deal with these assets. Furthermore if there is a complicated family set up or complex assets (like significant investments), it may be sensible to include further instructions and directions to your attorneys as to how these are dealt with and by whom.
Produced by Ashtons Legal
Ashtons legal serve clients nationwide and are based in Bury St Edmunds.
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