The case of an elderly man whose grandaughter secured Lasting Power of Attorney over his affairs and cut him off from his family is likely to be the tip of the iceberg.
The man was eventually abandoned isolated and confused in a squalid bedsit after he was diagnosed with dementia in 2020.
Family members had to go to extraordinary lengths to track him down.
With the granddaughter’s help, he had changed his will making her the sole beneficiary and she took complete control of his life.
In June, Parliament will debate a private member’s bill to provide extra safeguards to Lasting Power of Attorney (LPA).
The move has cross party support.
A Lasting Power of Attorney is a powerful legal document that allows an individual to appoint one or more people (attorneys) to make decisions on their behalf.
Now Poole private client solicitor Ana Dilling of Rawlins Davy Reeves says she fears this kind of case is far more widespread than realised.
She said: “My concern and that of many others is that LPAs can be created by anyone, for anyone, without the proper checks being carried out by someone suitably qualified to do so.”
“It’s a significant worry. It’s actually very easy, far too easy, for someone to create a legally binding document giving them control over someone else’s finances and decisions relating to their finances and health.”
“When I see clients to discuss Lasting Powers of Attorney, I am not just taking their instructions on who they want to appoint and advising them on the logistics of the documents.
“I am also checking a number of things including their mental capacity to create these documents in the first place, whether undue influence, coercion or manipulation is being exerted on them to create these documents, whether any other family members are being notified that an LPA is being created and advising on why this is important for the clients security, and discussing with clients the importance of choosing the right attorney.
Mrs Dilling said The Office of the Public Guardian (OPG) is supposed to investigate reports that an attorney is acting inappropriately and can have them removed from the LPA but this would require someone noticing a problem and then actually reporting it.
“While a Lasting Power of Attorney can be a vital tool for managing affairs in the event of incapacity, it is crucial to carefully consider the potential risks,” she added.
“I cannot stress enough how important it is to obtain independent legal advice when creating LPAs to ensure all the risks are discussed and that people are making informed decisions.”
BACKGROUND
While an LPA can provide essential protection and support, here are some key risks to consider.
1: Risk of Abuse
Attorneys may misuse their authority for personal gain, such as accessing the donor’s finances or property without their best interests in mind. This risk increases if the attorney has a history of financial mismanagement or if there is a lack of transparency in their dealings.
2: Choosing the Wrong Attorney
Appointing an unsuitable attorney can lead to poor decision-making. Attorneys should be trustworthy, capable, and willing to act in the donor’s best interests. Family dynamics, such as favouritism or conflict, can complicate the selection process and lead to disputes.
3: Inadequate Understanding of Responsibilities Attorneys may not fully understand their legal duties or the scope of their authority. This can result in either overstepping their boundaries or failing to act when necessary, potentially leading to adverse outcomes for the donor.
4: Disputes Among Family Members
Family disagreements over the donor’s care or financial management can arise, especially if the LPA is not clearly documented or if multiple family members are involved. Such disputes can lead to legal challenges, straining relationships and causing stress for all parties.
5: Registration Issues
If the LPA is not registered correctly or in a timely manner, it may not be recognised when needed, causing delays and complications. Additionally, if the donor lacks mental capacity at the time of registration, it can lead to challenges in proving the document’s validity.
6: Potential for Isolation
In some cases, attorneys may isolate the donor from family and friends, limiting their ability to make informed decisions or express their wishes. This can lead to feelings of loneliness and vulnerability for the donor.
7: Emotional Burden on Attorneys
Attorneys may experience stress and emotional strain, particularly if they are managing complex financial affairs or making difficult decisions about the donor’s health and welfare. This burden can impact their relationships with the donor and other family members.
8: Legal Challenges
If there are concerns about the validity of the LPA or the actions of the attorney, legal disputes may arise. These can be costly and time-consuming, potentially diverting attention from the donor’s needs.
