My mother is approaching her 85th birthday. While 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 while they had the chance.
I think it is time to set up a Lasting Power of Attorney, although I am rather anxious about bringing up the subject. I am looking for some guidance on this. How do you work out which child or sibling would become the attorney?
Is it worth using a solicitor? Should we do it ourselves? It seems like a complicated area and I would appreciate some expert advice.
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 three options in the event that you have appointed two 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 one of the three 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 turn out to have been a false economy. Furthermore, instructing a law firm that is 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!
Monica Cervellini originally practiced at a law firm in Pescara, Italy, gaining experience in litigation and civil law matters. She spent more than years in an international law firm in the city of London, where she was tasked with handling private clients, with a particular focus on international probate matters involving multi-jurisdictional issues (primarily Italian and English). Her experience in probate cases has varied from simple assets involving straightforward procedures, to more complicated procedures, which included part of the estate being abroad, or Wills drafted under different rules and jurisdictions, for both UK domiciled and non-domiciled individuals.
To get in touch with Monica for any Wills and Probate enquiries:
- Email: email@example.com
- Call: 020 8209 0166.
- Post: Gregory Abrams Davidson Solicitors, 746 Finchley Rd, London, NW11 7TH