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Make sure your lasting power of attorney does what it should

A valid Lasting Power of Attorney, registered with the Office of the Public Guardian, ensures that if you lose capacity, your attorney or attorneys can make decisions on your behalf in respect of your property and finances or health and welfare.

Recent cases have highlighted how important it is that the lasting power of attorney is drafted correctly in order to ensure your wishes can be carried out fully.

In an LPA an individual can give guidance or instructions as to how they want their attorneys to act.  A number of LPAs have been sent to the Office of the Public Guardian for registration where individuals have given instructions or preferences regarding assisted dying or suicide. It was held that such guidance or instructions must be removed from the LPA as they would involve the attorney committing criminal acts.  This was despite the fact that in the future, and before the attorney is required to act under the LPA, the law may change.

The second issue concerned how attorneys act together. The appointment of attorneys can be joint, joint and several or joint in some matters and joint and several in others, therefore, the way the attorneys are to act together must be made clear.

In one case the LPA had been drafted to read: “If my spouse is capable of acting, my attorneys other than my spouse shall not act in any manner unless my spouse is unable to act on their own in this matter.”  This wording was not allowed and was taken out of the LPA. However, had the individual been correctly advised and the appropriate wording used, their wishes as to how the LPA could be used by the attorneys would have been met.

It is important therefore to remember that having a valid LPA that allows your attorneys to act in accordance with your wishes involves more than merely completing a form but also getting expert advice.

Author: Katy Burgin

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