Potential Problems with LPA’s

An LPA allows an individual a legal authority to manage the affairs of another person, normally a family member if they lack the capacity for themselves.

There are two types of LPA’s one for Health and Welfare, and one for Property and Financial Affairs.

When the LPA is signed, a certificate provider also needs to sign to confirm the person making the LPA (The Donor) understands the purpose of the LPA, there is no fraud or undue pressure, and there is nothing to prevent the LPA being created.

The certificate provider will be somebody who has known the donor personally for at least two years, or somebody with the relevant professional skills, such as a medical practitioner or a solicitor. If there is any doubt to the donor’s mental capacity, then the certificate provider should be a medical practitioner.

The donor will need to think carefully about the people who are appointed as attorneys, and how this will work in practice. If the donor wishes to appoint more than one attorney, for example two children, they have two options, the donor can either appoint jointly or separately, which means the attorney can be alone or together; jointly, which means all decisions need to be made together; or jointly in respect of some decisions, and joint and separately in respect of other decisions. The donor can also appoint a replacement attorney.

If the attorneys do not get on, this could cause practical problems. As the donors’ attorneys, however, you will need always to act in the donor’s best interests.

In certain circumstances family members may wish to object to the donor making the LPA.

In this situation the objector would need to do so, under either factual or prescribed grounds. For example, prescribed grounds include that the person making the objection believes that the donor did not have the capacity to make the LPA, or that the donor was pressurised to do so, or there was some kind of fraud.

If the donor does not proceed with the LPA, and looses capacity, the only option is for an interested party to apply to the Court of Protection for a Deputyship order. In these cases the deputy appointed is usual a love one, or someone very close to the donor, but it can also be a professional such as a solicitor.

The application can be costly and time consuming, particularly in view of the current Court working practices with the Covid 19 regulations, which is slowing everything down considerable.

There are numerous forms that need to be completed, including a form to be completed by a medical practitioner, to confirm the donor is no longer capable of managing their own affairs.

The reality is that if the donor does loose capacity and has not made a power of attorney, somebody appointed by the Court will make these decisions. This is similar to the case in America, which may or may not have come to people’s attention known as ‘Spears’ case and in the US it is referred to a Conservatorship.

Deputy applications in England and Wales, Scotland and Northern Ireland have separate regimes for this situation.

The Deputy is monitored by the Court of Protection. They need to report to the Court at least once a year, and have an in-depth knowledge of the individual circumstances. The Court can visit the deputy at any time, and question them about their involvement. If someone regains capacity, the Deputyship Order will end.

Everybody in these circumstances should make Powers of Attorney, and if you require assistance please do not hesitate to contact us.