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Life jacket

Safe or sorry?

19 June 2015

Business owners can protect themselves should the unexpected happen to them.

Every 90 seconds someone is admitted into hospital in the UK with an acquired brain injury. One in three people over 65 will develop dementia.¹ Yet fewer than 1% of the UK adult population have a lasting power of attorney (LPA).²

Suzanne Lurie, partner at solicitors Linder Myers, has recent personal experience to add to her conviction that individuals need to do more to protect themselves and their families against such eventualities. “The impact of not having an LPA can be devastating for an individual and their family. My uncle, a retired accountant, had a serious heart attack in Portugal at Easter, and lost mental capacity. He had no LPA, which left his dependant wife alone in a foreign country with no access to money or credit cards. The family are now embroiled in reams of paperwork, delay and expense associated with the Court of Protection.”

As Lurie points out, the consequences for her uncle and his family are difficult enough, but would have been compounded if he had still been working as a sole practitioner in his accountancy firm.

Many business owners do not consider what would happen to the day-to-day management of their businesses should a similar fate befall them. Even if business owners can convince themselves that such scenarios are exceptional and will never happen to them, they should consider the more likely event of being stranded abroad, having poor internet or phone access, or being incapacitated for even a short period of time. The consequences could mean that there is no one to authorise payments or make those urgent decisions, as the authority to do so lies solely with one person. It could mean that contracts could not be completed and the very survival of the business is threatened.

Simple steps

The solution is quite simple. Give a trusted member of the business the authority to act in these circumstances. This authority is contained in a power of attorney, which is a legal document in which a person (the ‘donor’, or ‘granter’ in Scotland) nominates a person or persons (the ‘attorney(s)’) to be authorised to make decisions on the donor’s behalf.

There are two types of power of attorney to be considered here: an ordinary power of attorney (OPA) and a lasting power of attorney (LPA), otherwise known as a continuing power of attorney in Scotland. There are significant differences between the two.

An OPA is appropriate for when the donor wishes to give specific authority for a specified period of time, but ceases to be valid when the donor loses mental capacity.

An LPA can give wider powers and will continue even if the person loses mental capacity. An LPA must be registered with the Office of the Public Guardian to be valid.

Whilst business owners may feel they are giving away less ‘control’ by putting in place an OPA, the LPA covers a wider range of circumstances and, in particular, that in which Lurie’s uncle found himself.

In both documents, restrictions can be placed on how any attorney acts and the donor can also give guidance to the attorney. Anyone over 18 can be an attorney and there is no limit on the number of attorneys a donor can appoint. The process of drawing up a power of attorney is reasonably straight forward and therefore not too expensive.

As Lurie recalls, “One client told me it had turned out to be the cheapest insurance policy they had taken out.”

1 Office of the Public Guardian, November 2014

2 Age UK, February 2015

Please note that advice given in relation to a Power of Attorney will involve the referral to a service that is separate and distinct to those offered by St. James’s Place and is not regulated by the Financial Conduct Authority.

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