Safeguarding plays a vital role in LPA administration – a case study
John Smith has a fairly complex estate and has recently had a meeting with his financial adviser, who has asked whether he has a Lasting Power of Attorney (LPA). This isn’t the first time his financial adviser has asked the question and John did recently have a work colleague whose wife lost capacity without an LPA in place; he remembers that trying to sort out all the finances and paperwork was incredibly stressful for his colleague.
So he decides that he not only needs to put an LPA in place; he needs to talk to his preferred attorneys to ensure they understand what they are taking on, and that they have access to all the information they need when the time comes.
John chooses a local law firm, and asks them to draft his LPA. He’s nervous because he’s heard that attorneys can take advantage of their powers – particularly over finances – and he wants to make sure that couldn’t happen in his case. He is concerned about losing control of his finances, and about how to make sure his attorneys follow his wishes when they make decisions.
John’s solicitor talks him through the supervision and safeguarding clauses that could be included in his LPA. They discuss the skills and approach that someone in a safeguarding or supervision role would need, and the responsibilities they would have. They also talk about who John might want to appoint as an attorney, and whether they are willing and able to make that commitment.
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What makes a good safeguarder?
- Someone who you know is trustworthy
- Someone who has good money-management skills
- Someone who is a good decision-maker
- Someone who has the ability to oversee the duties carried out by the attorney
- Someone who can step in quickly if there is an issue or even a crisis
John decides to appoint his niece as his attorney, but in addition he would like a professional to supervise the decisions of the attorney once he has lost capacity, checking regularly that everything seems to be in order, supporting his niece if she is in need of guidance and pre-authorised to report any safeguarding concerns. The solicitor adds clauses to the LPA that allows for this option including a charging clause.
In order to avoid any doubt about over the potential conflict of confidentiality and safeguarding duties, the solicitor asks John to sign an advance consent for permission to disclose confidential information to safeguard him and his property. John feels confident that he has an extra layer of security in place which will protect him and his finances when he is most vulnerable.
Maintaining financial transparency
John then wants to know how he can be sure his attorney’s actions will be transparent. His solicitor suggests Switchfoot Teams, which several of her clients use successfully. An online system, it allows attorneys and designated individuals to see what financial transactions have taken place on a real-time basis. This is a deterrent to financial abuse and ensures that all actions are transparent at all times. Accounts production can be automated and the accounts default to a chart of accounts in line with OPG deputy return, offering the best practice available from modern personal accounting. John sets up Switchfoot Teams and invites his solicitor into his ‘Team’.
The solicitor recommends that the following clauses be added to John’s LPA:
‘I direct that my attorneys shall provide access to an online system detailing all of my financial accounts to [insert chosen safeguarder]’
‘I direct that my attorneys shall produce summary accounts including a complete transaction history to [insert chosen safeguarder] on a monthly basis.’
Initially John sets up Switchfoot Teams, providing limited access for his attorney. In years to come, as his ability to manage his affairs decreases, the access level can be increased for his attorney when she needs to support John in his decisions and when she needs to act, providing for a smooth transition. And John can be confident that, if needed, his appointed safeguarder will be able to step in if anything goes wrong.
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