Lasting Powers of Attorney: A vital part of succession planning for farmers

Farming families have had a particularly difficult period during the Covid-19 pandemic, facing increased demand from consumers with limited time and resources at their disposal. Farming is an already demanding occupation with heavy machinery, livestock, dangerous chemicals, silos, and slurry pits as daily hazards encountered as part of running the business. With so much relying on the physical health and capability of key individuals, having a contingency plan in place in case something goes wrong is a must.

Lynne Smith, Private Client Specialist and part of the agricultural law team at Pearsons & Ward Solicitors in Malton* advises that making a Lasting Power of Attorney (LPA) should be a vital part of business succession planning for farm owners, who are at increased risk of becoming physically or mentally incapacitated at any time.

An LPA is a legal document that allows you (the donor) to choose one or more individuals to serve as your attorneys to make important decisions on your behalf, if you are unable to.

There are two types of LPA:

• a Financial LPA allows your attorneys to deal with issues such as running your business, dealing with land and property, handling monetary transactions, managing your bank accounts and investments, paying your bills, and applying for benefits.
• a Health and Welfare LPA gives your attorneys the power to make decisions for you about things like eating, washing, medical care, where you should live, and whether to continue life-sustaining medical treatment and end of life wishes.

Both types of LPA enable you to set out in writing how you would like things to be run while you are incapacitated, providing guidance to your attorneys and placing any restrictions on them you feel are needed.

An LPA is a powerful document, giving your attorneys substantial power over you and your affairs, so it is not something to be entered into lightly and should always be made with professional legal advice. Although it may be tempting to use the Office of the Public Guardian’s online service or an off-the-shelf kit, if things go wrong, things could turn out to be very costly indeed.

Lynne looks at some of the common pitfalls involved in DIY Lasting Powers of Attorney:

• The resulting document may not be legally fit for purpose. The application forms are complex and mistakes are easy to make – even ticking one wrong box can make it invalid – and if the forms are not filled in exactly right, your application may be rejected by the Office of the Public Guardian and you will have to pay again to resubmit.
• Even if your initial application is passed by the Office of the Public Guardian, it may not be accepted in future by banks, utility providers or medical professionals. You would then have to spend a lot of time and money correcting any mistakes that have been made.
• Without professional legal advice, you are far more likely to leave yourself open to fraud or coercion. Someone who may not have your best interests at heart may be able to falsify documents to their own advantage or manipulate you into signing something which you may not fully comprehend or are not entirely happy with.
• Legal professionals are also invaluable in helping you produce an LPA that truly reflects your wishes, encouraging you to consider all the important factors that need addressing, such as who should be your attorneys, what powers they should have, what restrictions should be placed on them, and exactly how you would like your affairs to be run.

For further information contact Lynne Smith, in the private client law team at Pearsons & Ward Solicitors on 01653 692247, email lynne.smith@pearslaw.co.uk or complete our online contact form.

*Pearsons & Ward Solicitors is part of Ware & Kay Solicitors and serves clients across North, East and West Yorkshire.