Powers of Attorney & Planning for Later Life
You probably have a Driving Licence but do you have an effective Power of Attorney?
BLOG #2 Powers of Attorney – are they as simple to apply for and use as a driving licence?
In our first Blog of this 10 part series on “Planning for Later Life” we mentioned that a Power of Attorney is one of the most important and powerful documents to have in your “legal tool box” in advance of any potential crisis.
We ended with the questions:
How many people have a Power of Attorney?
At what age are they typically registered?
Why are they so important?
STATISTICS #2 – according to the Office of the Public Guardian annual report, in 2018/19 the OPG registered 835,950 LPAs and EPAs, an increase of 8.4% on 2017/18 and 28.9% increase on the 2016/17 figure.
The aim of the OPG, quoted by the recently retired, Public Guardian and CEO, Alan Eccles, was “we want our lasting powers of attorney to be as well-known as driving licences – affordable, flexible and accepted wherever they are used”
At the end of that 2018/19, there were 3,847,008 Powers of Attorney on the register.
And, the average age of the donor was……. 74!
COMMENT – why are they so important?
• Well, in April 2019 the OPG’s own research reported that 75% of people they surveyed mistakenly thought partners or close family could automatically make decisions for them if they were unable.
• However, only a valid and appropriately drafted Power of Attorney will provide an Attorney with power to make certain decisions, most often at a time when you are vulnerable and cannot make best interest decisions yourself.
• While the total number of registered Powers of Attorney seems large in isolation, if we take into account that in mid-2018, the Office for National Statistics calculated there were 48,441,277 of us aged 15 to over 94 in England and Wales then the current number represents, at most, only 7.9% of the adult population!
• So, potentially between 85% and 95% of us in England and Wales are ill-equipped to have someone trusted manage our affairs in the event of a sudden crisis of health.
• It could be even higher given that until September 2007, you could only create an Enduring Power of Attorney and they are only registered if the Attorney believes the donor “has become or is becoming mentally incapable of managing their affairs” rather than at the time of their creation.
• A danger created by the drive to make Powers of Attorney easy to prepare was the removal of certain protective safeguards, and there is even now talk of the whole process being undertaken on line, including electronic signatures!!!!
• These risks could be part of the reason why the recently retired Senior Judge at the Court of Protection, Denzil Lush, who has chaired a conference that I spoke at in Hove, so publically stated that he’d never make one and would rather he had the protections of a Deputyship Order if he ever lost capacity in later life?
• I believe that Denzil Lush’s comments indicate that while Enduring and Lasting Powers of Attorney are important and very powerful documents to have available in later life or at a time of a crisis of health, there are inherent dangers if they are prepared as a simple administrative task or by someone with ulterior motives.
• A Power of Attorney is not a commodity, like a tin of baked beans, but something that can either be life enhancing and empowering and provide peace of mind or something that is proved either worthless when needed to be relied up or something that has unwittingly created opportunity for exploitation of the someone when they are potentially vulnerable
• In contrast to a cheap or automated service, we are committed to ensuring that our clients are informed and empowered to shape the content and subsequent use of their Power of Attorney. They should be carefully considered and crafted to ensure that they are fit for the individuals circumstances, wishes, preferences and knowledge of their family and those they trust (and do not trust).
• We have the experience and expertise to advise and then draft Powers of Attorney and the supporting documentation that address the risks noted above. They can then also facilitate the Attorney both empowering the donor, to make the decisions they can, while also authorising the Attorney to make other decisions, clear in the knowledge of the limitations of their authority and the importance and scope of their responsibilities.
• So, while we can speculate about the country in general and what Denzil Lush’s reasons are for not having one, what we do is each know whether we’ve made a Power of Attorney.
• Even if you have, what you may not know is whether it’s fit for purpose. So here are some of our suggested action points:
1. Review any Enduring Power of Attorney with a specialist to ensure that it is valid and still potentially effective (particularly if it was DIY).
2. Check where the original is, whether anyone has any certified copies and what instructions you have provided for the circumstances that you permit your attorney to obtain the original.
3. Take advice on the benefits to you of creating a new Lasting Power of Attorney.
4. If you are an Attorney, consider whether you should be registering the EPA and take advice on the process, consequences and the scope/limits of your authority and the responsibilities you have to comply with.
5. Review any EPA or LPA (Property and Affairs) to check there are appropriate specific clauses included to assist your Attorneys to act in your best interests in the future. These can be particularly important to have authority to invest in certain ways.
6. Reflect on whether your current Attorneys are still suitable and whether they can act together or can you provide assistance or document your wishes to assist them in the future.
7. Consider with a specialist, the additional information it could be important to record and document concerning your future wishes and how your Attorneys are to operate to make best interest decisions for you.
8. Even if you have a suitable EPA, or just a suitable LPA (Property and Affairs), take advice on the benefits of a Health and Welfare LPA, preferably from someone who has experience of using one in real life situations rather than in theory. These have become increasingly important but had been largely overlooked when first introduced.
9. Take Specific advice if you have a business, property interests or assets abroad.
1. Contact Ian Macara and his team to discuss reviewing your current Powers of Attorney or the benefits of creating new or replacement Powers of Attorney that are specific to your situation, family, assets and wishes.
2. When considering a Later Life Legal Advisor look for accreditations for expertise and quality such as Solicitors for the Elderly (SFE), Society of Trusts and Estate Practitioners (STEP) “Intergenerational Planning”, Dementia Friend Champions, Action on Elder Abuse members, Court of Protection Panel Deputies (only 71 in England and Wales) – We have them all! FAQ
FAQ – while we didn’t have any from our 1st Statistic, I thought you might like to have the link to the ONS Life Expectancy Calculator to try!!!!
So do contact me with any questions about Powers of Attorney otherwise we’ll post what we are most commonly asked next time.
NEXT TIME – How many investigations are made each year against Attorneys, what can go wrong and what can be done to better protect the vulnerable from exploitation?