The steady rise in life expectancy means it is more important than ever that people appoint someone to take control of their financial and healthcare decisions if they are no longer able to do so themselves through ill health. This is done by appointing attorneys under a Lasting Power of Attorney (LPA) which gives the people you chose authority to make decisions for you; but what happens if the attorneys fall out?
How would your interests be protected if they do not agree about a key decision, such as whether you should go to live in a nursing home, or whether your home should be sold to fund your care?
‘While it can be daunting to place your affairs in the hands of other people, it is important to remember that if you do not have a lasting power of attorney then the local authority Social Services team could become involved and the Court of Protection could appoint someone to make decisions for you. This could be someone who you do not trust and would not have chosen’ explains Silviya Maclean, wills and probate solicitor with Morlings in Maidstone.
‘It is important to make your own plans, and there are a few steps which you can take to reduce the risk of a disagreement or stalemate over key decisions.’
Choose your attorneys carefully
Think carefully about who you choose to handle your affairs and whether they can work together well. It is usual for people to appoint two attorneys – typically their spouse, partner or other close relative for obvious reasons; but whoever you choose, ideally they will live nearby and enjoy reasonable health.
Even if you are confident they get on well, remember that their personal circumstances might change over time and this could have an impact on their ability to act on your behalf. You should nominate a replacement attorney to be appointed in case the original attorneys can no longer act.
You need to decide whether to appoint your attorneys to act jointly in the decision making, or ‘jointly and severally’ so that either attorney can make a decision independently of the other.
A sensible safeguard is to consider appointing a professional attorney as well, or as a replacement attorney if one attorney is no longer able to act. This means after you have lost capacity to make decisions, you can be sure someone impartial will be acting in your best interests. While there will be professional costs involved, a professional attorney is an expert lawyer and robustly regulated; so there will not be the risks associated with individual attorneys.
Make your wishes known
Is vital to take expert legal advice before making an LPA. Your solicitor will help you focus on the types of decisions your attorneys may need to make on your behalf and whether their authority can be limited in anyway. This is important because an LPA can give attorneys a blanket authority to make decisions for you, or you can limit their powers, for example by restricting their power to make financial decisions to ensure you remain in your home.
However, care needs to be taken in limiting their authority to ensure it does not make it invalid, otherwise a dispute could arise.
It may also be wise to discuss any existing medical condition with your doctor about future decisions that may have to be made, for example issues of giving consent to treatment or in relation to an instruction not to resuscitate.
You can then consider discussing these issues with your attorneys to ensure they understand your wishes alongside their duty to act in your best interests. Acting in your best interests includes considering any wishes you have previously expressed about your treatment or care.
Letter of wishes
Think about formalising your wishes by writing a ‘letter of wishes’ to be kept alongside your LPA. Though not legally binding, your letter of wishes will give your attorneys helpful guidance on how they should best make decisions for you. You can even write separate letters to each attorney if you choose but make sure copies are kept with your solicitor.
Putting your wishes and preferences in writing can go a long way in helping to minimise the risk of an argument; and, should a dispute arise, it could help resolve things quickly.
For further information, please contact Silviya Maclean in the Wills, Trusts & Probate team on 01622 673081 or email advice@morlings.com. Morlings Solicitors, part of Hatten Wyatt, has offices in Maidstone, Gravesend, Tenterden, Chatham and Tonbridge.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.