McHale & Co. Solicitors Blog

Jimmy Hill and Lasting Power of Attorney

A recent article in the Times about Jimmy Hill reminded me how important it is to choose appropriate attorneys when you prepare a Lasting Power of Attorney whether it is for Property & Finance or Health & Welfare. If anyone wants to discuss an LPA further please don't hesitate to give me a call or arrange a free initial appointment.

The text of the article is copied below:

With the news over the weekend that the former footballer Jimmy Hill is suffering from Alzheimer's disease came the accompanying stories that, as is so common, his family are in dispute over his care. Jimmy Hill's children are understandably concerned about the management of his affairs now that he has lost the capacity to deal with them himself.

Mr Hill had an Enduring Power of Attorney (EPA) drawn up for him in 2005, appointing his wife, Bryony, and a solicitor as his attorneys (EPAs have since been replaced by Lasting Powers of Attorney - LPAs). The importance of this distinction is that EPAs only provided attorneys with the ability to manage financial matters, not to make decisions about care.

The LPA regime introduced a new LPA that deals specifically with health and welfare issues (separate from a property and affairs LPA) designed, in part, to avoid the difficulties and disputes that now arise for Mr Hill and his family.

In Mr Hill's case, not even his attorneys have power to make care decisions for him (the medical authorities will look to the next of kin): his attorneys (under the EPA) merely deal with the financial implications of such care. Mr Hill's children now express their disappointment that they have no say in the process.

Attorneys under EPAs have a relatively limited duty to consult with family members when making decisions, although best practice usually dictates that attorneys should consult where possible so as to satisfy their general obligation to act in the donor's "best interests".

There is a duty to consult with anyone "interested in the donor's welfare" where it is practicable and appropriate to do so – but an attorney need not follow what those family members might say. Attorneys are under an obligation to behave properly and have duties to fulfil concerning the proper management of Mr Hill's assets – just because his children don't have control, or indeed disagree with decisions, doesn't make those decisions wrong.

The Court of Protection (which has jurisdiction over such matters) is reluctant to change provisions made by a person when they were well enough to make them. Mr Hill's own choice is of paramount importance.

An individual may have good reasons for not wanting his or her children to have control over his or her assets: if they chose to appoint a solicitor, they may have been motivated by the wish to have a professional exercising some control in the event that they lost capacity to manage their own affairs. Perhaps they may even have foreseen that any joint appointment of their spouse and children would lead to conflict and wanted to avoid such disputes.

Contrary to popular perceptions, Mr Hill's children do have "rights over his care" – the Court of Protection has an overriding jurisdiction to supervise attorneys in the discharge of their duties and if the attorneys breach those duties, the Court of Protection can step in to remedy matters, if so requested.

By Duncan Elson and James Lister from Charles Russell LLP published in The Times, October 10th 2013

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