Who will run the farm if you lose mental capacity?

 More and more farmers are making Wills to ensure their farming business can be passed on to the next generation following their death with as little disruption as possible.

However, given research shows that agriculture is the UK’s most dangerous industry to work in, that the average age of UK farmers is nearing 60, and that farmers have higher levels of mental health issues than non-farmers, shrewd farmers should also draw up contingency plans in case they lose mental capacity, as Laura Carter, Solicitor and agricultural specialist at Ware & Kay & Pearsons & Ward Solicitors in Malton explains.

You may lose mental capacity and become unable to make decisions for yourself due to an accident involving one of the many hazards that farmers come into daily contact with, through stress, or because of a stroke or dementia.

Whatever the reason, a good way to safeguard the continued smooth running of your farming business is to make and register a Lasting Power of Attorney (LPA), which lets you nominate a person or people (your attorneys) to run your affairs while you are out of action or if you no longer want to make decisions for yourself.

There are two forms of LPA:

• a property and financial affairs LPA empowers your attorneys to manage issues such as paying wages and bills, running bank accounts, dealing with investments, applying for benefits, buying and selling land and assets, and organising repairs;
• a health and welfare LPA lets your attorneys decide on everyday issues such eating, washing, and dressing, as well as make more serious decisions about your medical treatment and where you should live.

LPAs are legally binding documents which allow you to provide written guidance to your attorneys on how you want your affairs to be managed while you lack capacity and place any restrictions on their powers that you think necessary.

If you don’t have an LPA in place and become incapacitated, this can damage your farming business and cause unnecessary stress to loved ones – they will be effectively left in limbo while an application is made to the Court of Protection to have a deputy appointed to run your affairs, a process that can take months and is more expensive than making and registering an LPA.

You can appoint as many attorneys as you like, as long as they are over 18 and have mental capacity. If you choose to have more than one attorney, the LPA must stipulate whether they must agree on all decisions or if they can make decisions individually (the latter option is usually favoured as decisions can still be made if one attorney is unavailable).

You can have two financial LPAs – one covering the farming business and the other dealing with personal finances. You can choose different attorneys for each LPA so those who work with you on the farm would have a better idea how to run it, for example, while you may want a non-farmer to oversee your personal finances. 

How we as your solicitor can help

An LPA is a very important document, given the authority over you and your affairs that it bestows on your attorneys. It is strongly advisable therefore to consult a specialist to help you draw one up.

Our experienced team can talk you through your requirements, help you choose the right attorneys, and assess what restrictions you want placing on them. They will then draw up an LPA which suits your farming structure, reflects your wishes, is legally valid and properly registered.

Please contact Laura Carter on Malton 01653 692247 or email laura.carter@warekay.co.uk.