Farming is a dangerous business, with Health & Safety Executive statistics showing that agricultural workers are more than twice as likely to suffer a workplace injury than those in other industries.
Heavy machinery and vehicles, poisonous chemicals, unpredictable livestock, slurry pits and silos, working from heights, and trip hazards are all sources of potential injury that farmers face on a daily basis.
Given the risky nature of the sector – and the responsibility that comes with that risk – it is vital that farmers have plans in place to ensure the farm can continue to function should they lose capacity (even temporarily) to do so.
Making and registering a financial Lasting Power of Attorney (“LPA”) is one of the best ways of doing this, as Laura Carter, Associate in Wills & Probate at Ware & Kay incorporating Pearsons & Ward Solicitors in Malton explains.
What is an LPA?
An LPA is a legal document that allows you to appoint a person/people as your attorney(s) to handle your affairs should you be unable to make decisions for yourself.
There are two types of LPA:
• a financial LPA allows your attorneys to buy and sell property on your behalf, manage your bank accounts, pay your bills, deal with your investments, and look after your pensions and any benefits that you receive. This LPA can be used whilst you have capacity but only on your instructions – so, if you are in hospital and physically unable to do these things then you can instruct your attorneys to do them for you.
• a health LPA empowers your attorneys to decide on more personal decisions – such as where you should live, your medical care (including, if necessary, end of life treatment), and smaller issues such as what you will eat, what you will wear and who will be allowed to visit you.
If you would like to keep your personal and business finances separate then you can do so by having an LPA made in relation to each. For example, you may be happy with your family having management of your personal finances but would rather appoint a professional to deal with your business interests (such as a share in a farming partnership).
You can give written guidance to your attorneys in your LPAs on how you would like your business and personal affairs to be run and include restrictions if you consider that to be necessary.
Your attorneys must be over 18, have mental capacity and not be bankrupt or subject to a debt relief order. More than one attorney can be appointed and then consideration needs to be given as to whether they should make all decisions together (jointly) or have the ability to make them apart too (jointly and severally).
What happens if you do not have an LPA?
The damage to your farming business can be catastrophic if you become incapacitated and do not have a financial LPA in place. An application would have to be made to the Court of Protection to have a deputy appointed to manage your affairs – an expensive process that can take months, during which time your farm will remain in limbo since no important decisions can be made until a court order is made.
How we can help
We would always recommend that you consult a solicitor about drafting your LPA(s). We can help you choose your attorneys, advise on required guidance and restrictions and check for errors. We can make sure that a financial LPA works alongside your partnership agreement or advise that a new one be made.
For more information please contact Laura Carter on Malton 01653 692247 or email laura.carter@warekay.co.uk to see how we can assist.
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