There has been a significant increase in the number of investigations by the Office of the Public Guardian into the actions of Attorneys. This comes as a stark reminder of how important it is to draft legal documents, such as a Lasting Power of Attorney, in the right way, and with total clarity on all sides of what is and isn't permitted.
For initial advice about making an LPA call our Will writers on 03306069591 or contact us online and we will help you.
Making Decisions on Behalf of Someone who Can't
If someone is unable to manage their own finances or make their own decisions about medical treatment and other matters, then no one can automatically step in to make these decisions for them (not even their spouse!) There are two ways in which someone can be given the legal authority to do this.
The first is that the person in question could have put a Lasting Power of Attorney in place while they still had the mental capacity to do so. This is a legal document that appoints a named 'Attorney' who can automatically step in and take control of matters if and when the person is no longer able to do this for themself.
This is very quick and easy to do with professional support, and it costs from as little as £270 to put a Lasting Power of Attorney in place with Co-op Legal Services.
Note that in addition to our fee, there is also a Court registration fee of £82 per LPA, which will need to be paid to the Court. Some individuals on low income or in receipt of certain benefits may be exempt from this fee.
The second is option is to make an application to the Court of Protection for what's called a Deputyship Order. This is a much more complex process, often taking months to finalise and costing thousands of pounds in legal and administrative fees. This is the only option if the person did not make a Lasting Power of Attorney when they were capable of doing so.
See more information on how the costs compare between Deputyship and Lasting Power of Attorney.
The Dangers of a DIY Lasting Power of Attorney
Putting a Lasting Power of Attorney (LPA) in place while you're able to do so is the simplest and cheapest way to give someone legal authority to step in and take control of your affairs for you. Where issues arise is by people trying to draft these documents themselves, without seeking professional advice.
An LPA is a legally binding document which is more complex that you might expect, and it's easy to get this wrong. Do you know how to appoint replacement Attorneys, for example, or how to appoint multiple Attorneys to act either jointly or severally? If you want to leave instructions for your Attorney(s), do you know how to word these in a way that makes them legally sound and avoids any ambiguity?
A poorly drafted LPA could be found to be invalid or ineffective, meaning that it's essentially worthless. It's likely that any errors wouldn't be discovered until the LPA needs to be put into effect, at which time it would be too late to do anything about it.
Another risk of going it alone is that your appointed Attorney may not be clear on what is and isn't permitted in their role. Remember that when your LPA comes into effect your Attorney is likely to have a lot on their plate. They may be caring for you or coming to terms with an accident or illness that has taken your mental capacity. The last thing you want is for them to be hauled before the Court of Protection because of an accidental breach of duty.
Investigations by the Office of the Public Guardian
The Office of the Public Guardian (OPG) is the Government organisation responsible for overseeing Lasting Power of Attorney and Deputyship arrangements in England and Wales. The priority of the OPG is to protect people who are not able to make (or express) their own decisions.
If the OPG believes that an Attorney or a Deputy is acting in a way that is not in the best interests of the individual, then they will launch an investigation. In the 2017-18 financial year, the OPG carried out 1,729 of these investigations. This was a 44% increase on the previous year!
Get Your Lasting Power of Attorney Professionally Drafted
By seeking professional legal advice when you draft your LPA, you and your Attorney can be completely clear on what the role entails and what is and isn't permitted. With professional support from an SRA regulated firm, such as Co-op Legal Services, you can be certain that your LPA will be valid and your instructions will be crystal clear, so that your Attorney can step in and know exactly what to do if they're needed.
If your Attorney doesn't fully understand the parameters of their role and consequently strays beyond these, then they could be removed as your Attorney, with the Court appointing a Deputy in their place.