Your legal worries answered by our expert Wills and Probate Solicitor, Megan Donohue at Gregory Abrams Davidson Solicitors. This week’s topic is Lasting Power of Attorney.

Dear Megan,

My mother is approaching her 85th birthday. Whilst she is of sound mind and mentally capable I have noticed that she is becoming increasingly frail and this has made me worry about her. We don’t know what the future will hold and I have seen several of my friends’ parents succumbing to dementia and sadly they were not able to plan ahead whilst they had the chance. I think it is time to set up a Lasting Power of Attorney, although I am rather nervous about bringing up the topic. I am looking for some guidance on this. Does just one sibling become the attorney? Is it worth using a solicitor? Do it ourselves? It seems like a complicated area and I would appreciate some expert advice.

Janette Davis, Allerton.

Dear Janette,

You are correct. This can be a complicated area and one that is very difficult to discuss with family members.

The growing awareness of dementia has seen an increasing understanding by the general public of the need for a Lasting Power of Attorney (LPA) allowing you to appoint one or more attorneys to make important decisions on your behalf if and when capacity is lost. There are two types of LPA – a Financial LPA – giving the attorney power to deal with your property and financial affairs and a Health LPA – giving the attorney powers in respect of your current and future welfare and medical treatment.

The forms are standardised and cannot be deviated from. It is also designed with ‘tick’ boxes. However, despite their apparent ‘simplicity’ a number of drafting errors can result in unlawful additions you have made being struck out by the Court upon registration of the LPA or even worse, the LPA being completely rejected by the Court.

Part 3 of the LPA form is creating constant problems – this allows you to choose from 3 options in the event that you have appointed 2 or more attorneys. The attorneys must act either Jointly or they can act independently of each other (Jointly and Severally) or a mix of the two with them acting Jointly for some decisions and Jointly and Severally for other decisions.

Practical day to day problems can arise with a Joint appointment. If an attorney is away on holiday, the remaining attorney cannot act. If an attorney dies, the remaining attorney(s) cannot continue to act – i.e the Power ends unless replacement attorneys have been appointed. Likewise, choosing jointly for some matters and jointly and severally for others has both the aforementioned problems, but also the added difficulty of deciding which decisions fall within which of the options.

Moreover, the Court is receiving a growing quantity of powers that attempt to allow one attorney to act in all matters independently with the remaining attorneys acting Jointly at all times. The Court is adamant that only 1 of the 3 specific options listed above under the ‘tick box’ regime can be chosen from Part 3 and any attempt to deviate from these or any modification to them will be rejected outright.

In the vast majority of cases, Gregory Abrams Davidson Solicitors would recommend “Jointly and Severally” as the appropriate choice for a donor (the second of the three options discussed above).

As ever, an apparent saving of legal fees by not having used a solicitor will have turned out to have been a false economy. Furthermore, instructing a law firm who are experienced in these matters will give you assurance that someone outside of the family knows who you have appointed as your attorney and can also avoid disputes that you were of sound mind at the time of doing so.

We would caution you from being beguiled into thinking that the simplicity of a ‘tick-box’ means that the decision is simple and straight forward. Far from it!

Megan Donohue is a solicitor at Gregory Abrams Davidson and works as part of the Private Client team. The firm provides services in all private client areas including probate matters, simple or complex wills, trusts and lasting powers of attorney. For any enquiries please visit gadlegal.co.uk.

Gregory Abrams Davidson Solicitors