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What Are Lasting Powers of Attorneys and Why Do They Cause Problems

Posted: Friday, 16 July 2021 @ 14:14

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is useful tool when people become incapable of running their own financial affairs.

An LPA allows someone, of the donor’s choice, to step in and take control of the donor’s finances. Because of the great power the LPA gives them, attorneys are often trusted friends or family of the donor. However, where attorneys abuse this power, measures must be taken to protect the donor. This is particularly important when the donor cannot protect themselves or even complain about the way their attorney is acting.

LPAs represent a clear opportunity for people to conduct financial abuse.

Adults aged 18 or over with the capacity to make decisions can make provision for the event that sometime in the future they may lack capacity to make certain decisions. This can be done by giving another person Lasting Power of Attorney (LPA) - the authority to act on their behalf or by making advance decisions to refuse medical treatment.

People given formal powers under LPA to make decisions on behalf of adults who lack capacity are bound by the Mental Capacity Act and its Code of Practice. They have a statutory responsibility to act within the limits of the powers given to them always to act in the person's best interests Adults who lack capacity and do not have such formal arrangements and require significant decisions to be made may be subject to a best interest meeting or the issue may need to be taken to the Court of Protection.

The court may appoint a deputy to act as decision maker or make a declaration about what is in the person's best interests.

There are two types of LPA: personal welfare and property and affairs. LPAs are legal documents and are only valid if completed on the statutory form LPAs must be signed by the donor LPAs should normally name people who should be informed when it is to be registered LPAs must contain a certificate completed by an independent third party LPAs must name the person (or persons) who is to act as attorney LPAs must be registered with Office of Public Guardian (OPG) before they can be used If registered some time ago and not used, the attorney should inform the OPG when they start to act under it LPAs may have restrictions or conditions.

Why Do They Cause Problems?

LPAs can cause problems at two levels as it is very easy financial abuse over long period with the Property and Finance documents (without any effective scrutiny) and the Courts and police authorities are weak in the face of this abuse. Dealing with the police, you may just get lucky and in the face of evidence they will be intervene but that is not my experience. Dealing with the Courts you can have to be careful and disciplined with a Court application. Sadly from my experience judges can be indifferent in the face of fraud and any application must be focused and have clear evidence of fraud.