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Lasting Power of Attorney- Are your provisions valid and enforceable?

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Now that a donor is able to include instructions and preferences in a Lasting Power of Attorney (“LPA”), whether it be in respect of their Property and Financial Affairs or Health and Welfare, it is increasingly important to ensure that anything included in an LPA is actually valid and enforceable. A donor may want to include instructions as to how they would like their attorneys to act, whether it be jointly or jointly and severally, or preferences as to whether they would like their attorneys to be able to delegate to an investment portfolio manager in respect of any discretionary investments which they may have, or any health and welfare preferences such as remaining at their own home as long as they are able to do so or going into a care home etc.

The Court of Protection has recently decided 17 applications made by the Public Guardian to sever faulty provisions in LPAs in the case Re JG (Case No 12911940) et al [2017]. These decisions included the consideration of the appointment of joint and several attorneys and the power to make gifts to third parties. This case also highlighted that it is essential that LPAs are completed correctly in order for them to be interpreted as intended. In some cases the donor had filled in the "instructions" or "preferences" box in the Lasting Power of Attorney in a way which was potentially inconsistent with a box they had ticked elsewhere on the form. In another case, the donor had written in the instructions box that she wished for her daughter-in-law to act as a replacement attorney only if she remained married to her son. It is possible for the Court to cure technically inaccuracies found in an LPA if it is clear what the donor’s intention was, though avoiding inaccuracies in the first place will provide more certainty for the donor as to the validity of their Lasting Power of Attorney and the provisions within it.

The full judgement for this case can be found at http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCOP/2017/10.html&query=(JG)+AND+((Case)+AND+(No)+AND+(12911940))

If you are thinking of preparing a Lasting Power of Attorney and you have any questions or wish to discuss your requirements, we have a large experienced Private Client team at Clarion who regularly advise on, and prepare, LPAs and would be happy to help.

Please contact us on 0113 336 3427 or email us  kerri-anne.ball@clarionsolicitors.com

 

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