A lasting power of attorney is a legal document that allows a person (the donor) to appoint one or more people (the attorney(s)) to help to make decisions or to make decisions on the donor’s behalf should they lack the mental capacity to make a decision for himself. Recent statistics have been released confirming that the number of lasting power of attorney applications had risen by around 89 per cent between 2013 and 2015.
Planning ahead is becoming more important now that we are living longer. The number of centenarians living in the UK has risen by 65% over the last decade to 14,750 in 2015.
Unfortunately, with age comes a greater risk of mental illnesses. Currently, there are 850,000 people with dementia in the UK, with numbers set to rise to over 1 million by 2025. This will soar to 2 million by 2051.
It is important that the donor takes steps to choose someone they trust to manage and protect their wellbeing in an attempt to avoid any future disputes or abuse of their power. Sadly, it is all too common for family disputes to occur after the donor has lost the ability to manage their personal and financial affairs. The donor should be encouraged to explain their wishes and feelings to family members when appointing an attorney to prevent any relevant party feeling excluded from making important decisions.
A lasting power of attorney enables family members and others to take legitimate control of someone else’s affairs. Unfortunately, this enormous power and responsibility can lead to misconduct. Under the Mental Capacity Act 2005 it is possible to apply to the Court of Protection to remove an attorney. Recently there has been a rapid increase in Power of Attorney revocations due to financial mismanagement or alleged theft.
Given the seriousness of the power, the court will look at all the circumstances, including the seriousness of the behaviour or potential behaviour, and consider whether it is necessary and proportionate to revoke the lasting power of attorney and if it would be in the donor’s best interests.
Examples of behaviour which often warrants an application to revoke a power of attorney include where the attorney fails to keep proper accounts, has authorised large gifts to be made out of the donors funds or in any other way in which they are clearly not acting in the person’s best interests.
Over 350 attorneys or deputies had their powers revoked in 2014–2015 because of financial mismanagement or alleged theft. Attorneys are expected to act in the best interests of the donor and follow the Mental Capacity Act Code of Practice. People are therefore strongly advised to appoint their attorney carefully, discuss their decision openly with their family and friends and, if in doubt, seek legal advice.
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