What checks should I make before releasing a lasting power of attorney (LPA)?
I prepared and registered an LPA for property and financial affairs, appointing a client’s son and daughter as joint attorneys if she loses mental capacity. The son has requested its release on the basis that she has lost mental capacity and he needs to pay her care home fees and manage her affairs. What checks should I make?
As the donor has elected that the LPA should only become valid on her incapacity, you need to satisfy yourself that the donor has lost mental capacity to manage her finances.
The attorney will need to provide evidence, such as confirmation from the client’s GP, consultant or other professional, for your firm to accept the attorney’s instructions.
You should check the LPA for any restrictions on its use imposed by the donor and that the attorney’s intended use is within the scope of the attorney’s authority.
As there is more than one attorney appointed, you will need the instructions of all the attorneys as to which attorney will hold the original LPA.
You should identify and verify both attorneys before releasing the original LPA.
LPAs are open to abuse.
If you suspect that an attorney may be misusing an LPA or acting dishonestly, you must contact the Office of the Public Guardian Safeguarding Unit:
- call 0300 456 0300
- email firstname.lastname@example.org
You should also consider contacting the police and social services safeguarding team if you suspect psychological, physical or sexual abuse, theft or fraud.
You may also need to consider taking advice from the Solicitors Regulation Authority's professional ethics team on the extent to which you can reveal confidential information in these circumstances.
While every effort has been made to ensure the accuracy of the information in this article, it does not constitute legal advice and cannot be relied upon as such. The Law Society does not accept any responsibility for liabilities arising as a result of reliance upon the information given.
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