A Power of Attorney has more than one function, enabling another person to assume responsibility for another person's affairs when that person, known as the doner, has lost the capacity to make lucid decisions; or act for a donor when they are unable to be physically present themselves, for example, when conducting a commercial transaction abroad or temporarily restricted whilst in hospital.
The different forms of Powers of Attorney are applied to various purposes are: Ordinary Power of Attorney and Lasting Power of Attorney which replaced the previous Enduring Power of Attorney in 2007. An Ordinary Power of Attorney is appropriate for a donor who has mental capacity but is unable to be physically present to conduct a transaction and a Lasting Power of Attorney which is suitable for a person who no longer has the mental capacity to deal with their own affairs. A Lasting Power of Attorney is divided into two parts, Lasting Power of Attorney for health and care decisions and Lasting Power of Attorney for financial decisions.
A Power of Attorney is often regarded as something that is applied to the elderly when their mental capacity is eroded by dementia but there are many reasons for a person at any age may require a Lasting Power of Attorney. An accident causing a head injury where, whilst there will be recovery eventually, it will take considerable time; severe illness such as coronavirus where a person may be in a coma and also face a long period of incapacity until recovery or a complete breakdown of mental health, all are reasons to create a Lasting Power of Attorney and appoint an Attorney or Attorneys to act on your behalf. There is a clear need for a doner in one or other of these situations to have another person in the position of being able to act for them. But what happens if your Attorney does not act in your best interests?
The public interest surrounding the situation Britney Spears finds herself in is a stark reminder that there are instances where an Attorney's actions are called into question. In circumstances where the donor may appear to have recovered capacity and no longer wishes the Lasting Power of Attorney to apply to them, they may find that obstacles may be placed in their path when challenging their Attorney and attempting to revoke the Power of Attorney. Also, in the current climate regarding the coronavirus pandemic, a young person may be overtaken by the virus and rushed decisions may be made regarding the appointment of an Attorney and over time it transpires that the appointment was unwise for a number of reasons.
The England and Wales Office of the Public Guardian (OPG) recorded over 700 cases where applications for court orders against Attorneys deemed to have acted in their own interests rather than those of the donor in 2018-19, the largest number recorded to date. Also, The OPG also began nearly 3,000 safeguarding investigations during 2018/2019, a considerable uplift on the previous year. A donor can cancel a Lasting Power of Attorney provided they have sufficient mental capacity to make such a decision.
Fernanda Stefani, a consultant solicitor, commented "if you suspect an Attorney is not acting in the best interests of a donor who does not have the capacity themselves to end the Lasting Power of Attorney by Deed of Revocation, you can ask the OPG to investigate and depending on the findings, the OPG will take various steps to protect the donor and their assets including asking the Court of Protection to remove the Attorney" she further pointed out " it can be difficult to establish whether or not an Attorney is abusing their position. It is far better to plan of all eventualities and appoint more than one Attorney from different sources, family, professional advisors and friends. Spreading the responsibility across several individuals and specifying that they should be appointed to act jointly and severally, this allows the donor to be protected against a number of possibilities such as the Attorney's incapacity or death or in the event of bankruptcy of a financial Attorney"
Giambrone's highly experienced lawyers can advise on a range of issues related to the safeguarding of vulnerable individuals who are no longer able to deal with their own affairs. Each situation is individual and a strategy to protect an individual (and their dependents) who has lost capacity either temporarily or permantly can be drawn up.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.