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As investigations into attorneys soar, why taking legal advice is a must

The importance of using a solicitor when drafting a Lasting Power of Attorney has been dramatically highlighted by a significant increase in the number of investigations into the actions of attorneys and deputies in the past year.

According to the Office of the Public Guardian (OPG), there has been an almost 45 per cent increase with 1,729 investigations in the 2017/2018 financial year compared to 1,199 the previous year.

With an ageing population and more people than ever before deciding to appoint an LPA, the increase is thought to be due at least in part to a rise in DIY and online submissions.

Risk of mistakes and abuse

Wards Solicitors' Partner Jenny Pierce, head of the Wills, Probate and Mental Capacity Team and service manager for our Vulnerable Clients Department, believes this is leaving people not only at risk of attorneys making mistakes but in some cases, of abusing their position too.

Jenny, also a director of Solicitors for the Elderly (SFE) added: "These new statistics highlight the clear need for professional advice when considering drawing up a powerful legal document of this nature with the aim of specifically ensuring your wishes are respected should you ever lose capacity.

"Using a solicitor to create and register an LPA safeguards against it being drawn up with errors that turn out later to be expensive, time consuming and extremely stressful to put right."

Important decisions

An LPA is a legal document that allows a person (the 'donor') to appoint trusted individuals to make important decisions on their behalf in the event of a loss of mental capacity through an accident or illness such as dementia.

One covers financial decision making and the other personal welfare decisions like where you live, your medical care, your clothes, diet and so forth.

In England and Wales there are more than 2.6 million Lasting Power of Attorneys (LPAs) registered with the single largest group being those for people aged between 81 and 90, closely followed by those between 71 and 80

Taking expert and professional legal guidance provides protection

Along with Solicitors for the Elderly, Wards Solicitors recommends a number of precautionary steps - including, in most cases, avoiding shop bought and online LPA kits - to ensure your lasting power of attorney is effective, legally robust and safe:

  • Plan early - While you have capacity, it's vital that you get your affairs in order and choose the best people to manage your affairs, in case of an accident or illness. You can't appoint an attorney once you lose capacity;
  • Choose carefully - Think carefully who you want to appoint as your attorney and have an open conversation with them so they understand your wishes and what their responsibilities will include. Consider appointing more than one person as your attorney so they can share the responsibility;
  • Consider appointing a professional - A family member might not always be the best person to act as your attorney. Instead, you can appoint a professional such as a solicitor. They can act as a neutral third party and make unbiased decisions that are in your best interests. Bear in mind this usually involves a cost;
  • Think about different circumstances - Consider how you would like your attorney to manage your property and financial affairs in different situations. For example, are you happy for your property to be sold to pay for your care costs?
  • Address the difficult questions - Your attorney might have to make difficult decisions about your health and welfare. If you have specific wishes around your care plans, medical treatment, or end of life wishes, make sure you discuss this with them and make your choices clear in your document;
  • Seek professional advice - In most cases, avoid shop-bought and online LPA kits. Seeking professional legal advice is the best way of ensuring that an LPA is effective, legally robust and safe;
  • Keep your plans current - Make sure you keep your LPA updated if your circumstances change. Your choices around the people you want to be responsible for your finances and wellbeing may change, such as following a marriage or divorce, when children reach adulthood, or if parents pass away.

For more information about LPAs, please contact Wards Solicitors' Will, Probate and Mental Capacity team, now one of the biggest and most experienced departments in the South West.

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