News & events
02/02/2012 - Choose your 'attorney' carefully
Last week, Sussex legal secretary Leanne Harris was jailed for four years and nine months for stealing nearly £500,000. She admitted five counts of fraud between November 2008 and May 2010.
One of Ms Harris' victims, Miriam Turnbull, lost around £64,000. However, this was not a case of Harris breaking into her house or forging her signature. As Ms Turnbull's attorney she had a legal right access her assets but subsequently abused that authority for her own personal financial gain.
Unfortunately, this is not an isolated incident. Every year beneficiaries of estates discover that assets which are due to them under a will have already been siphoned off and stolen long before a vulnerable relative's death.
Lasting Powers of Attorney (LPA's) are useful legal documents which are used to appoint someone to act as your ‘attorney' in the event that you become mentally incapable of dealing with certain issues. There are two types of attorneys, namely those who deal with your financial decisions and those who deal with your health and welfare (or in some cases the same person may be selected to deal with both).
LPA's can be incredibly useful, but when considering Harris' fraud, is it still worthwhile having an attorney?
To hand over control of your personal affairs to someone else may seem risky, but there are legal safeguards in place which can minimise the risk of someone like Harris being able to take advantage of an elderly or vulnerable person.
In the event that someone tries to register your LPA you can nominate, in advance, who must be notified of this. The attorney is also accountable to the Court Of Protection and must provide information to the court when requested to do so.
Also consider what would happen if you do not have an LPA and later become mentally incapable? The Court can appoint someone to look after your finances and welfare. However, this can be a more costly and complex process and also means that someone who may not know you or your wishes could ultimately take over control of your affairs.
Occasionally, problems can arise with LPA's, but this usually stems from a lack of planning at the time when it is made. You should therefore consider obtaining specialist legal advice and always carefully consider who is going to be appointed as your attorney(s), given the level of power which you are potentially handing over to them. Having two attorneys, rather than just one, can also act as a safeguard.
The main advantage of having an LPA is choice. You choose, whilst you are still able to, whom you want to manage your affairs and this usually also provides peace of mind.
The following checklist illustrates some things to consider when deciding who to appoint as your attorney:
- Are your attorneys (if you want more than one) likely to work well together?
- Do they understand what this will mean (i.e.) the duties they will have to carry out?
- Are they trustworthy?
- Do they have sufficient spare time to deal with your affairs?
- Are your assets large and complex? If it is you may need to instruct at least one professional attorney who can deal with tax and other issues.
- Is your attorney likely to carry out your wishes or will they have their own agenda?
- Is your attorney elderly? If so they may die before you.
- Have you discussed your wishes with your attorney? If not – how can they make the right decisions on your behalf?
- Have you reviewed your attorney as your circumstances have changed? For example if your spouse was your attorney and you have since divorced.