Coronation Street – The OPG weighs in on Lasting Powers of Attorney

In a recent episode, Audrey Roberts’ grandson, David Platt, is not happy with Audrey’s decision to alter her will and has issues with the organisation she has chosen to leave money to and her decision to not provide for some family members. David discussed the possibility of creating LPAs for Audrey and thinks he can use them to change Audrey’s will.

As the OPG mentioned, a Will and an LPA are not related and take effect at different times. A Will only takes effect once a person has died. In contrast, an LPA is used during a person’s lifetime and allows chosen trusted individuals (attorneys) to manage the health or finances of another (the donor) when they can no longer manage their own affairs.  The powers granted to an attorney end when the donor dies.  An LPA for financial decision can be used while the donor has mental capacity (unless specified to the contrary in the document) but the attorneys would not be able to simply take over the donor’s life; the donor would remain in full control of their assets and the attorneys should only act on the donor’s instruction.

In addition, an LPA can only be made by a person who has the capacity to do so, and you cannot make an LPA for somebody else. In this case, Audrey would be the only person who could create her LPAs and she would decide who she would like to name as her attorneys, as well making directions as to how those attorneys should act in her best interests.  When making an LPA, a certificate provider is required to sign it, to confirm that, in their opinion, no-one is putting the donor under undue influence to make the LPA.  This compulsory step in the LPA making process should provide a level of protection for Audrey, if David was coercing her to make the LPAs in his favour.

One of the things an attorney cannot do is create or alter a donor’s Will – this is explicitly stated in the LPA. Even if Audrey chose David to be her attorney, he would not be able to change her Will.  There is an exception to this.  If Audrey had lost capacity, David could apply to the Court of Protection to change the Will by making a statutory Will for Audrey.  These are only granted in limited circumstances and David would need to demonstrate that the changes were absolutely necessary and in Audrey’s best interests.

Whilst David cannot use the LPA to change Audrey’s Will, if Audrey had lost capacity, he could use it to request sight of a copy of it.  This would enable him to ensure that he didn’t do anything, whilst acting in his role as attorney, that conflicts with the terms of her Will.  The default position if the LPA is silent, is that the attorney is entitled to see a copy of the Will but for the avoidance of doubt, we always ask clients about this when making their LPAs and include an express provision in the LPA document to address this.

The points discussed above mirror some of the frequently asked questions we receive in the Wealth Preservation department and, whilst we are excited about the prospects of mainstream discussions about LPAs, there is still a lot of misinformation, uncertainty, and a lack of understanding surrounding them.

If you would like some further information about LPAs or would like to put them in place, please do not hesitate to reach out to your trusted contact at Greenwoods.