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Lasting powers of attorney for farmers

View profile for Caroline Dowding
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This morning, a retired Senior Judge has made sweeping statements about the effects of Power of Attorney documents. Denzil Lush, who was a senior judge at the Court of Protection, says that there is not enough safeguarding in place, and vowed never to sign one.

In practice, Lasting Powers of Attorney (LPA) can prove to be invaluable to help protect the farm when farmers become unable  to take an active role in the day to day activities of the farm either through accident, illness or old age. Without a LPA in place, the disruption and cost to the farming business can be significant, and can have an everlasting impact on the farming operations. If capacity is lost and the bank account cannot be accessed, then the reality of this is that suppliers’ invoices cannot be met, employees will not receive their wages, and loans and mortgage payments will fall into arrears. If there is a LPA in place, then your attorneys can step into your shoes to continue to run the farm.

Denzil Lush highlights some examples of where LPA documents have been abused, and unfortunately, some unscrupulous individuals do go against the grain and act deceitfully. However, this is extremely rare, and will be dealt with swiftly by the Court of Protection, once brought to their attention.

When making a LPA, it is imperative that the individuals you choose to act as your attorneys are people you trust implicitly. These can be family members, friends, or professionals as you see fit. This is particularly important from a farming perspective, as you would wish to have the right ‘mix’ of individuals to be able to act on your behalf, but have the requisite knowledge to continue running the farm.

You can have up to four attorneys acting, and you can elect as to how your attorneys can act, whether it be individual decisions, or decisions made jointly. There can be an extra level of protection by appointing more than one attorney to oversee your affairs. What must be borne in mind is that your attorneys must always act in your best interest at all times.

Farmers notoriously never retire, and therefore it is a sad fact of life that there is always the potential for capacity to become an issue at a later date through the effects of old age. However, it is not just the older generation that needs to consider making LPAs. Farms can be a dangerous place to work given the use of heavy machinery, livestock and the like. It is therefore wise to have a contingence in place should the worst happen. All farmers have insurance in place in case their barn was to burn down. In all probabilities, this would never happen, but you pay your premium just in case the worst happens. Why would you not take the same care of your farm in the event of incapacity? It is often forgotten that incapacity can be temporary as well as permanent, but having a LPA in place can ensure that your farming business can continue, no matter the circumstances.

If you would like to discuss Lasting Powers of Attorney further, then please contact me in our Colchester office on 01206 217394 or caroline.dowding@birkettlong.co.uk.

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