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Conflicting Information in your Lasting Power of Attorney…

Lasting Powers of Attorney (LPAs) are extremely helpful. They enable someone you trust to...

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Conflicting Information in your Lasting Power of Attorney…

16th July 2018

News : Wills & Probate

Lasting Powers of Attorney (LPAs) are extremely helpful. They enable someone you trust to have legal authority to make decisions on your behalf. This might be due to you losing mental capacity – whether as a result of dementia, stroke or an accident.  It may be that you no longer wish to make your own your financial decisions. Indeed, if you travel frequently, it may be more convenient to have someone else manage your financial matters. In order to be effective, it is important that the documents are correct and do not contain conflicting information.

If the Lasting Powers of Attorney fail to comply with prescribed formalities, then the Court of Protection may intervene. They may declare whether or not the document can be treated as if it were in the prescribed form. If appropriate they may remove provisions which would be ineffective or would prevent the LPA from being valid.

The Office of the Public Guardian is responsible for the administration of Lasting Powers of Attorney.  In the Public Guardian’s Severance Applications [2017] EWCOP 10, the Court considered issues relating to Lasting Powers of Attorney which had been referred by the Office of the Public Guardian.

Conflicting Information – Joint or Several Attorneys

Issues to be considered by the Court included joint and several appointments.  Attorneys can be appointed to act jointly, jointly and severally or jointly with regard to some matters and jointly and severally with regard to other matters.

Jointly and severally is often the more appropriate choice because this provides greater flexibility to Attorneys. This option therefore also allows ease of use and efficiency.  In addition, if one of two Attorneys appointed jointly and severally is unable or unwilling to act, then the Lasting Powers of Attorney does not fail. In this situation the surviving Attorney can continue to act. Compare appointing Attorneys jointly only, in which case if one Attorney is unable or unwilling to act, Lasting Power of Attorney will fail.  The original Attorney must then be reappointed.

The Lasting Powers of Attorney documents have a section in which guidance and/or instructions can be given for the benefit of the Attorneys.  It is important this such guidance does not conflict with the way that the Attorneys have been appointed.  For example, if you were to include an instruction that certain financial decisions could be made by a majority but you have appointed the Attorneys to act jointly, then the Lasting Power of Attorney would fail.  In such circumstances the Office of the Public Guardian may refer the LPA to the Court of Protection for review. There will though be uncertainty, delay and additional costs. This is at a time when it is needed to ensure the efficient and proper management of the Donor’s affairs.

The completion of the Lasting Powers of Attorney can result in a situation which prevents the outcome intended.

How to avoid making an invalid LPA

It is important that you seek independent legal advice when considering making Lasting Powers of Attorney.  Poole Alcock LLP Cheshire Solicitors specialise in advising clients on the merits and implications of making such documents. They will consider how the LPA should be prepared to best meet your needs.  If you would like us to help you, please do not hesitate to call on 0800 389 7093. Alternatively you can visit our wills and probate services page here or complete the form linked here and we will call you back.

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