The snappily named Assured Tenancies and Agricultural Occupancies (Forms) (moratorium Debt) (Consequential Amendment) (England) Regulations came into force on Monday 3 May 2021.
Her doctor was planning to run further tests, but she was preparing herself for the worst. Being a no-nonsense sort of person, she had immediately responded to this painful news by setting about putting her financial affairs in order.
She advised me that she had gone online and had created her own Lasting Power of Attorney (“LPA”), for which I commended her on her pragmatism and good sense. She then went on to tell me of her choice of attorneys and I was immediately concerned, and so gently said so.
My friend had appointed her adult children - her son and daughter - as her attorneys, jointly and severally.
Now it might seem appropriate, indeed obvious, that a person's adult children would be the clear choice as their attorneys. I knew that my friend’s children loved her dearly and would wish to do everything they could to ensure that her affairs were managed in her “best interests” when the time came.
However I also knew that my friend’s son had bipolar disorder, and that from time to time, as a consequence of his mood swings, he would exhibit irrational and impulsive spending patterns. I was also aware that my friend’s daughter had a partner who was struggling to manage his gambling addiction.
We talked through the financial risks and the various scenarios that might play out if her son and daughter took on the role of attorney for her, and my friend came to the conclusion that she needs revoke (or cancel) her recent LPA, and start again.
Talking through the terms and provisions of your LPA with a solicitor can result in important issues being identified that may be far from obvious.
Getting the choice of attorney right is critical. I have recently been appointed by the Court as a property and financial affairs deputy for an elderly woman who had appointed her two sons, jointly and severally, as her attorneys. They were both very capable and financially sound individuals, who wanted to help their mother. However, as brothers, they disliked and distrusted each other, and could not work together. They each made allegations that the other had mismanaged their mother’s affairs, acted in self interest, and breached his duties as attorney. After lengthy and expensive proceedings in the Court of Protection, the LPA was revoked, and the Court decided that an independent panel deputy be appointed, to step in and take over the management of their mother’s affairs.
At Anthony Collins Solicitors (ACS), we recognise that a diagnosis such as dementia or the onset of a mental illness can cause great stress and anxiety, and lead to a fear of loss of independence or control over their own life.
Mental capacity is the ability to make decisions for yourself. People who cannot make their own decisions are said to ‘lack capacity’, whether their difficulty is due to an injury, a learning disability, mental health problem or a condition such as dementia, which might affect the way a person’s brain makes decisions. A person may have the capacity to make some decisions but not others.
A person may have lost mental capacity to manage their own complex financial affairs, and yet they may have still the capacity to appoint individuals they trust to manage their finances on their behalf, by making a Lasting Power of Attorney.
At ACS, we work alongside men and women who, for a number of different reasons, may already struggle to make certain decisions for themselves.
With appropriate support and advice, we know that individuals with impaired or fluctuating capacity may nevertheless still be able to make some important decisions for themselves, to prepare for an uncertain future.
If you or a member of your family is simply keen to prepare for the future in a very practical way, or indeed, if they are coming to terms with an unwelcome diagnosis and are under pressure to “get their affairs in order”, please do contact our PPM team. We would be delighted to talk to you, answer any questions you may have, and advise and support you through the process of making an LPA.
For more information
Please contact Sheree Green
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