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Philip Martin-Summers  

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Managing your affairs is not always a family affair

 

Article date:  01/10/2013

Sadly, many people will be affected by mental incapacity at some point in their lives, whether through illness, old age or as the result of an accident.

If you do not have a suitable arrangement in place and you lose the capacity to manage your affairs yourself, an application would need to be made to court to appoint someone to manage your affairs for you. Not only is this a relatively expensive and lengthy process, but you also would have no control over who is appointed. These uncertainties can be avoided by creating a Lasting Power of Attorney ("LPA"). This document allows you to choose one or more relations, friends or colleagues as your "attorneys" to make decisions on your behalf. Two types of LPA exist; one relating to your "Property and Financial Affairs" and the other relating to your "Health and Welfare".

Your Attorney should be an adult of sound mind who you know well and trust; they must always act in your best interests and in accordance with the principles laid down by the Mental Capacity Act 2005 and the Code of Practice supporting it. You can choose more than one Attorney and your Attorneys can be members of your family if you wish, but this is not mandatory.

The recent coverage given to Jimmy Hill and his power of attorney highlights the fact that the correct choice of attorney to look after your affairs after you lose capacity is crucial. Your attorneys are responsible for the efficient and smooth running of your affairs and they stand in your shoes to do what you would have done in the circumstances had the incapacity not occurred. They could be responsible for the investment of your funds and all dealings with your assets. It is therefore important for you to appoint people who are business-like, reliable and able to understand the issues involved. They must also be willing to devote the time required to administer your assets and affairs.

Appointing family members alone may be satisfactory in some cases but in other situations, where complicated or dysfunctional families exist, or where there is a concern that friction may arise within the family - it would be better to choose a professional executor, such as a solicitor. This is the scenario for Jimmy Hill; to avoid conflict between his current wife and children from a previous marriage he engaged with a solicitor to be his attorney. It was Jimmy's choice as to who would deal with his affairs and look after him and it is important to respect the right of the Attorney to appoint whomever they choose. Jimmy's children disagree with his choice of Attorney and feel that they are being unfairly treated as the courts will not intervene to overturn Jimmy's wishes. It is important to respect the decision and for the children to realise that they have no divine right to be included if their father expressly chose not to include them.

These situations can be avoided if the family is made aware of the contents of the LPA at the outset. At Higgs & Sons we seek to encourage as many people as possible to make LPA and work with families to ensure that conflict is kept to a minimum.

Higgs & Sons works from two offices in the Black Country - Waterfront Business Park in Brierley Hill and Kingswinford. The firm employs more than 200 people, which includes over 100 specialist lawyers.

For specialist advice on Lasting Powers of Attorney call Philip Martin-Summers on 0845 111 5050 or email philip.martin-summers@higgsandsons.co.uk.

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