Top Tips For Making An LPA And Avoiding Financial Abuse
To mark World Alzheimer’s Day, later life specialists at leading national law firm Irwin Mitchell have some top tips for those looking to take out a Lasting Powers of Attorney (LPA) – and how to avoid your loved ones falling prey to financial abuse.
There are two kinds of LPA – one covering health and welfare, and the other financial and property affairs. Either one or both can be made to cover the sad event of someone losing mental capacity – our experts recommended the latter to ensure all aspects of life are covered.
When making an LPA, it is vital the donor has capacity to understand and sign the LPA, as well as the consequences of what the LPA entails. The OPG has more advice on what LPAs cover on its website, or you can ask a solicitor.
Expert Opinion“Often people say they will make an LPA if and when they are diagnosed with dementia or Alzheimers, but this could leave it far too late and by the time a diagnosis is provided, the donor may not be be able to answer the questions needed to make one.
“Unfortunately tragedy can strike at any time, such as an accident that causes mental incapacity, and so an LPA is recommended as early as possible to give your loved ones peace of mind that they can best look after you if they need to.” Nicola Hawkins - Solicitor
Since 2014 it’s been possible to make an LPA online yourself; the Office of Public Guardian (OPG) launched the new “Use a lasting power of attorney” service in July this year, but experts warn of the potential financial abuse risks from online applications.
Nicola continued: “Online LPAs are sadly open to financial abuse if left to unscrupulous individuals because of the downplaying of just how important the role of the certificate provider is. The certificate provider can be someone who isn’t related to the donor but has known them for two years, which is where exploitation can sadly happen.
“Our recommendation is the certificate provider is a professional, a solicitor, a doctor or a capacity assessor, as they have the expertise to confirm the donor has capacity. If the LPA was ever challenged at a later date, in particular on the grounds that the donor didn’t have capacity to sign the LPA or was unduly influenced into signing the LPA, the certificate provider will need to provide evidence that this is not the case. If this is a lay person they may not have the expertise or the written notes to confirm the donor had capacity. This could lead the OPG to revoking the LPA.
“It’s always recommended that legal advice is taken when making an LPA. We’ve seen on a number of occasions where clients have made the LPAs themselves that they have not covered every ‘what if’ scenario.
“For example clients could appoint their spouse as the attorney and vice versa, which can cause issues in dealing with joint assets and means there is no attorney appointed for the survivor. Clients have also appointed attorneys who do not get on which has meant the LPA is unworkable. We’ve even had clients who tried to put in too many restrictions, limiting the attorney’s authority and therefore getting rejected by the OPG."
Top tips for LPAs
- Make an LPA before there are any concerns regarding your mental capacity
- Make both types of LPAs to cover all bases
- Consider your attorneys carefully – do you trust them completely?
- If you don’t feel comfortable appointing your family members, you can always go for a third-party attorney, such as a solicitor
- Take legal advice on the LPAs to make sure it works when you need it most
- Appoint a professional to be the certificate provider so they can make sure everything is above board for you
- Register straight away so that they are ready to use when needed