How to help clients create a lasting power of attorney

  • Learn how attorneys are appointed in England and Wales and why they are important.
  • Understand what LPAs allow clients to achieve and the role of a health and welfare LPA.
  • Consider how to broach the issue with clients and some tips for advisers.
How to help clients create a lasting power of attorney

Buzz Aldrin’s recent decision to sue his family for mismanagement of his finances has, quite rightly, reminded advisers across the pond that those appointed to make decisions on a client’s behalf need to be selected with the utmost care.

Like many, the famous astronaut opted to appoint his children – albeit together with his manager – to oversee his finances on his behalf.

Now, however, Mr Aldrin has claimed that his children are not only applying funds from the Buzz Aldrin Space Foundation against his wishes, but transferring money from his accounts without his consent and even preventing him from marrying.

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In response, Mr Aldrin’s children have claimed that their father is suffering from dementia and, accordingly, liable to confusion and manipulation. 

Appointing attorneys in England and Wales 

Whatever the outcome, professionals all over should hope that high profile cases, such as Mr Aldrin’s, go some way to breaking the taboo around important decisions regarding the management of finances and welfare, particularly in later life. 

In England and Wales, these decisions are made through the creation of lasting powers of attorney (LPAs), which allow a person (known as the ‘donor’) to nominate those who will act on their behalf should they for any reason lack the capacity to do so (known as ‘attorneys’).

Without the involvement of a professional, however, laypersons drawing up these crucial documents risk exposing themselves to oversights, mistakes and, potentially, misuse of attorney powers.

It is possible to appoint professional attorneys, though this often incurs a baseline annual fee in addition to hourly rates and, for many, this will be impractical.

Before we look to the headlines and despair, however, we need to recognise that celebrity misadventures have a higher profile than quieter cases where things run smoothly. 

Some figures might help contextualise the risk. The Office of the Public Guardian’s (OPG) annual report for 2016-17 reveals that it carried out 1,266 investigations into safeguarding referrals, bringing cases to the Court of Protection in 272 of these instances.

In 2016-17, 648,318 powers of attorney were registered, up from 547,021 in 2015-16.

Evidently, then, misuse of powers of attorney occurs in a small, though significant, portion of cases, and advisers need to be ready to demonstrate the importance of both creating LPAs and ensuring that they are created properly.

Why are LPAs important?

In the UK, there are two types of lasting power of attorney: one for matters relating to a person’s property and financial affairs, and one for matters relating to their health and welfare.

If these documents are not in place when a person loses capacity, then their next of kin will need to apply to the Court of Protection for a deputyship order before any decisions regarding these matters can be made. 

This process can be time-consuming in contrast with creating lasting powers of attorney.