Lasting Powers of Attorney – A tool to protect the vulnerable
We recently reported on this complicated case in which RWK Goodman partner, Amanda Noyce, successfully defended our client Mr Gordon Willey during a £6 million civil case bought against him by care home owner David Barton.
The audacity of David Barton’s civil claims against his residents (our clients Mr and Mrs Willey) brought to light Barton’s criminal activities which were reported to the police by Amanda Noyce and her team. Barton was eventually convicted of stealing a huge amount of money from residents who trusted him but he caused untold emotional pain and suffering to the victims and their families.
Thankfully, these dreadful activities were carried out by a rogue individual who has finally been punished for his crime but it highlights the vulnerability of people who are unable to make financial and welfare decisions for themselves due to injury, illness or old age.
Protecting your finances and decisions made around them
One tool you can put in place to protect yourself from fraud and theft in a situation such as this is to make a Lasting Power of Attorney for Property and Financial Affairs. This enables a you (the Donor) to choose someone you trust (an Attorney) to assist you in the future, if needed, whilst you have mental capacity, and to act for you if mental capacity to manage your own affairs is lost.
The LPA must be set up whilst you still have mental capacity and the Attorney can be a friend, relative or even a professional such as a solicitor. Having an Attorney involved can not only provide support to you but also helps to prevent any unsanctioned transactions being made.
The choice of Attorney is an important one
As of March 2017, the single largest group of registered LPA’s were for people aged between 81-90, closely followed by those aged between 71-80.
Many people choose to appoint a family member as their Attorney, and, although this often works well, it can create an imbalance in the relationship between Donor and Attorney.
Sometimes Attorneys who are related to the Donor will fail to understand their legal role which is completely separate to their familial relationship. This can result in poor decisions.
In order to be a good decision maker, the Attorney needs to understand their limits, know when to ask for help and advice, and be able to support the Donor to make as many decisions for himself/herself as possible.
In order to minimise the risk of financial abuse careful consideration has to be given to the choice of Attorneys. Safeguards can be included within the document e.g. a Donor can insist that an Attorney has to provide copies of audited accounts to a third party.
Specialist lawyers in our Private Client team can give tailored and objective advice on LPAs and draft LPAs for Property and Financial Affairs which include relevant safeguards. Where we are involved in the preparation of the document, we can make sure the Donor understands what they are entering into and tell them and their Attorney exactly what their Attorney can and can’t do.