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Insights

Importance of choosing the correct attorneys

Posted on 30th December 2020 in Later Life Planning

Posted by

Sue Halfyard

Senior Associate and Chartered Legal Executive
Importance of choosing the correct attorneys

The Court of Protection (COP) has recently ruled that lasting powers of attorney (LPAs), for property and affairs and health and welfare, made by a parent appointing four daughters as joint and several attorneys, should be not be registered as they considered that the attorneys would behave in a way that would not be in the best interests of their parent.

The parent and three of the daughters executed the LPAs. The fourth daughter did not execute them and objected to their registration.

Under the Mental Capacity Act 2005 the COP may direct that an LPA should not be registered if one of the grounds for objecting to registration applies. When considering whether the attorneys of the powers proposed to act in a way that was not in their parent’s best interests the court had to consider all of the available evidence and the likely future behaviour of the attorneys and whether this was likely to be in parent’s best interests.  There was evidence of a fractious and acrimonious relationship between the three daughters who had executed the LPAs and the fourth daughter. This meant that they would not be able to act in their parent’s best interests by working together with their sister and making decisions on a joint basis, despite all four daughters having the parent’s best interests at heart.

This is the first time a case has been brought on the future behaviour of attorneys.

Even though each of the daughters may have been suitable to act as an attorney, as they were not able to work together, they would not have been able to act in the best interest of their parent.

This emphasises the need to choose your attorneys carefully.  Not only do they need to be suitable to act as an attorney but consideration also needs to be given as to whether or not they will be able to work together. 

For any help putting in place an LPA, as well as amending a current one please contact our dedicated team, or for more information about powers of attorney read our latest insight.

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