Lasting Powers of Attorney: Coronation Street provides a useful reminder

A recent episode of Coronation Street has provided a timely reminder of the importance of understanding how Lasting Powers of Attorney (LPAs) work.

A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint one or more attorneys to help you make decisions or to make decisions on your behalf if you lack mental capacity. Making an LPA means that you have the control over who is given legal authority to make decisions for you, being the person/s that you trust to act in your best interests. Without an LPA, you have no say in the future as to who may apply to the Court to take such control and it may not be the person you would have chosen.

LPAs replaced Enduring Powers of Attorney (EPAs) in 2007 and only EPAs made and signed before October 1^st 2007 can still be used by attorneys.

In comparison, a Will allows you to decide what happens to your estate on your death, whilst an LPA deals with your affairs when you are alive but have lost mental capacity for whatever reason. They are two separate legal documents used for different purposes and do not supplant each other. If you were to lose metal capacity without LPAs in place, your family could face the costly and lengthy challenge of applying for authority to deal with your affairs from the Court of Protection.

There are two types of LPAs which can be made whilst the person, known as the donor, has mental capacity. One that covers your property & financial affairs and another which covers health & welfare matters. Once made, LPAs must be registered at the Office of the Public Guardian (OPG) before they can be used by attorneys.

Audrey’s story

Recent episodes have followed the character of Audrey Roberts as she makes decisions about her Will and LPAs, to the surprise of her family. These episodes have raised important awareness of both the benefits of LPAs and the potential pitfalls when making them.

The story highlights the disappointment of Audrey’s grandson, David Platt, when he discovers the provisions made for her family in her new Will. David (mistakenly) believes that he can encourage Audrey to make LPAs which would then provide him with an opportunity to alter her Will.

Unknowingly, Audrey decides to proceed with making her LPAs and during this process her son, Stephen, forges her signature in a desperate attempt to gain access to Audrey’s trust fund.

Whilst this may seem a farfetched storyline, it raises important issues to consider when making LPAs and how to avoid any potential misuse by attorneys.

OPG response

The episode has sparked interest in legal circles and even prompted a response from the OPG in relation to some of the factual inaccuracies contained in the story.

The OPG was quick to point out that “LPAs and Wills are separate documents, and don’t affect one another.”. Although David thought that by influencing the creation of his grandmother’s LPAs he could ultimately alter the provisions in her Will, this is not the case.

Equally, to mitigate any concerns over undue influence on a donor when they are setting up an LPA, a certificate provider is required to sign the LPA and confirm that, in their opinion, there was no undue influence on the donor. A legal professional is therefore best placed to act as certificate provider for an LPA application.

Even if an LPA was made in response to a third parties suggestion, appointed attorneys have to act in the best interest of the donor, following the written guidance in the LPA and The Mental Capacity Act 2005 Code of Practice which is available on the OPG website. Furthermore, once an LPA is created, no alterations can be made to it by anyone, including the attorneys. The donor can revoke the appointment of attorneys or the document altogether if they have capacity to do so. If complaints were raised against attorneys, the OPG can investigate, provided that the donor has lost mental capacity.

Attorneys can request a copy of the Will if they are managing affairs and want to ensure whatever steps they take will not undermine the wishes in the Will. However, an original Will would never be released to the Attorneys.

As to the attempts of forgery by Stephen, if you have capacity and have concerns that your LPA is being misused, it is possible to sign a Deed of Revocation to revoke the LPA.

How Ramsdens can help

Ultimately, whilst Audrey’s story made for entertaining episodes in a programme watched by millions around the UK, it has also provided awareness about how we can act to put our affairs in order, for both life and death.

Solicitors are best placed to assist when you are creating LPAs as they have the necessary understanding of the application process and issues surround capacity. It is recommended that you seek legal advice from a Solicitor if you are considering creating LPAs as applications to register LPAs at the OPG require accuracy and clear guidance to be accepted.