Powers of attorney: How to ensure your farm business stays in safe hands
Putting plans in place to ensure that a person’s estate and financial affairs are managed in the event that they are no longer able to do so themselves, is highly important, especially for those in the agricultural community.
Wills and probate specialist at law firm Shakespeare Martineau Debra Burton tells us more.
Lauren Dean
Having a power of attorney is standard practice for a large number of people and allows nominated individuals to step in and take control in the event of a loss of capacity, for example through old age, illness, or injury.
However, whereas under normal circumstances this involves predominantly managing bank accounts, attorneys in the agricultural community may find themselves responsible for running and managing a large farm, and the complexities which go along with it.
Appointing the right people to have power of attorney on your behalf is crucial. Many farmers consider themselves stewards of the land and want to ensure the success of the farm, not only under their tenure, but for future generations is extremely important.
Anyone who is going to be appointed as an attorney should ideally share this ethos and these values, as well as having the skills and willingness to step in and manage a large farming business, if needs be.
Other things to consider when choosing either one or more attorneys include organisational ability, financial awareness, trustworthiness and, if more than one attorney is appointed, whether they get on with each other and won’t be a source of conflict.
Unfortunately, this is a recurring theme in the agricultural community: two parties have power of attorney for someone but opposing viewpoints about what that person may have wanted or what is in their best interests.
This means that disputes could arise about whether or not to sell the land.
Responsibility
Being appointed someone’s attorney is a position of significant responsibility and – especially when the role involves managing a farm – can be a lot for one person to take on alone.
Generally, appointing more than one person is a shrewd move, both sharing the burden of responsibility and minimising the risk of an individual abusing their power over the assets.
Lasting powers of attorney can be set up at any stage of life, so long as the person granting the power of attorney has capacity to do so.
The process for putting them in place is simple and ideally should involve liaising with a solicitor who will discuss the choices of attorney and their wishes, ensure that they have capacity to enter into the power of attorney, and notify the future attorney or attorneys before drafting the document.
This document can then effectively be kept safe until the person has lost capacity and it needs to be registered.
Of course, no matter how careful a person is about choosing their attorneys, there is always the possibility that things can go wrong further down the line, for example, if fraud is committed and money is stolen, or an attorney is simply behaving in a way which contradicts the wishes of the person who appointed them.
Attorneys are policed by the Office of the Public Guardian (OPG) and anyone who believes that an attorney isn’t acting in the best wishes of the donor should notify them.
Of course, if the actions are criminal, then the police will need to be involved.
Appointing someone to deal with your affairs in the event of a loss of capacity is a significant decision.
It is an equally important decision in agreeing to be someone’s attorney. It takes a special sort of person to successfully manage and run a farm and choosing wisely is essential in ensuring that the farming legacy, vision and ethos is safeguarded for the future.
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