By far the biggest deficiency of most Powers of Attorney is their inability to fully, and accurately demonstrate the donor’s wishes. An LPA after all bestows authority, but not fully explain the donor’s wishes. In an LPA this is left to any ‘instructions’ and ‘preferences‘ included within the document itself, and/or the appointed attorneys own translation and recollections. All open to challenge and misunderstanding by family, financial institutions and of course the Courts.
The law itself is not overly helpful as it’s general instruction to is attorneys to ‘act in the donors best interests‘, which can, and is interpreted in any number of ways. Potentially the best solution is for donors to direct their attorneys to previously drafted ‘Letter of Wishes’, one for financial and one for health/medical matters. If this is sufficiently detailed it should remove any doubt or misunderstanding as to what the donor’s ‘best interests’ are. These would not only make decision taking much easier for the attorney, it should also eliminate the possibility of any accusation of wrongdoing.
With individual estates now often worth many hundreds of thousands £££s,’ we should all now realise that LPAs are as essential a part of estate planning as Wills and Trusts, and requiring just as much attention to detail!
