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05 November 2013

Family matters when taking out a Lasting Power of Attorney

A recent national newspaper interview with the son and daughter of football legend and TV pundit Jimmy Hill highlighted the difficulty some families can face when a power of attorney is put in place.

At 85, the former Match of the Day host now lives in a nursing home after being diagnosed with Alzheimer’s in 2008.

Three years previously, when he was still in good health, Hill had given joint powers of attorney to his current wife from his third marriage and a solicitor, which means none of his children has any say in his future affairs or treatment.

Now, Jamie and Joanna Hill, his children from his second marriage, say they want to raise awareness of the difficulties that arise when a parent who has a large extended family, becomes too unwell to make decisions for themselves.

In the article in the Daily Telegraph, Joanna Hill was quoted as saying: "Children whose parents have married more than once should be made aware that they will be unable to influence their affairs if they register a power of attorney and the children are not appointed as attorneys.”

She added: “Children should talk to their parents, before deterioration sets in, about how they want to be looked after and whom they want to be in charge of their lives.”

As well as the siblings, Hill, who has been married to his third wife for some 20 years, had three children from his first marriage. Joanna and Jamie Hill said they only discovered the existence of the document in 2008 when their father was assessed as too ill to look after

himself, and the law required that they be informed that power of attorney had been granted to Mrs Hill and a solicitor.

Craig Williams, partner at leading Buckinghamshire law firm B P Collins, says as the number of second and third marriages rises, the problem of who has a say in the care of elderly parents is becoming increasingly common.

“Taking out a Lasting Power of Attorney (LPA) is a sensible move and one we would encourage families to think about sooner rather than later, because it is something you can only apply for while you have the mental capacity to do so,” he said.

“Difficulties can arise however, when it comes to deciding who to choose as the individual (or individuals) you wish to give the LPA to, and who you wish to tell about your plans.

“Where there are children from other relationships they may well wish to have a say in future care provisions for their parents. As this case shows however, if the person taking out the LPA chooses not to acknowledge them or inform them of their plans, there is little they can do in the eyes of the law.”

In 2007, the LPA replaced the previous Enduring Power of Attorney and, as part of the legal process, the documentation must be registered at the Office of the Public Guardian.

Lasting Powers of Attorney can be made in respect of property and financial affairs and can also be made in respect of decisions relating to health and welfare. These two types of Lasting Power of Attorney are distinct from each other and individuals should take advice from a solicitor as to which powers of attorney would be most suitable for their needs.

In advance of the registration, anyone named in the document must be notified and given three weeks in which to raise any concerns. Crucially however, relatives are not entitled to be notified unless they are named in the LPA.

Craig continued: “It can be extremely distressing and frustrating for adult children whose parents have remarried and who haven’t been included or notified when a power of attorney has been made.

“Of course, that is the individual’s prerogative, but we would urge anyone planning to take out an LPA to think carefully about involving their loved ones in the discussion. By doing so, they will potentially avoid a great deal of heartache in the future and give the wider family the chance to support each other and work together at what can be extremely distressing time.”

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