Lasting Powers of Attorney – Appointing a Professional is Often Best

Lasting Powers of Attorney (LPAs) are a sensible means of ensuring that your affairs are kept in order and your welfare is provided for if you lose the capacity to make important decisions for yourself. Your natural assumption may be that such powers should be exercised by your loved ones but, as a High Court case recently reviewed by Anne Caswell showed, there are often sound reasons for appointing a professional to perform the role.

A woman who was aged in her 80s and in the early stages of dementia executed two LPAs by which she appointed her four daughters as her attorneys in respect of her health, welfare, property and affairs. Three of them signed the documents and sought to formally register them with the Public Guardian. The fourth, however, refused to sign them and objected to their registration.

Ruling on the dispute, the Court noted that the woman underwent an expert medical assessment prior to making the LPAs and it was presumed that she had the mental capacity required to make them. Her condition having since deteriorated, however, she now lacked capacity either to change the LPAs or to execute new ones.

She was clearly much loved by her daughters, who all had her best interests at heart. Her clear wish when executing the LPAs was to confer decision-making authority on all of them. There were no concerns that she had suffered any form of financial or emotional abuse.

The Court, however, noted that the sisters were engaged in a seemingly intractable dispute and were unable to agree on almost anything. Their views, in particular, on how their mother’s finances should be managed were entirely polarised and their relationship was described as fractured.

The Court expressed no view on the rights and wrongs of the dispute but, in refusing to register the LPAs, it found that the entrenched conflict between the daughters rendered them incapable of the degree of cooperation, engagement and agreement required for them to act effectively as their mother’s joint attorneys. There was sadly no prospect of them pulling together for the good of their mother.

The friction between them would only be heightened if the three daughters who had signed the LPAs were to act as attorneys whilst their sister was excluded from doing so. The Court found that their mother’s best interests demanded the appointment of an independent professional to act as her deputy in the management of her property and affairs. He or she would be required to consult all four daughters before making any decisions. There was no application to appoint a deputy in respect of the woman’s health and personal welfare.