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Lasting Powers of Attorney - are they flawed?

21 August

Lasting Powers of Attorney - are they flawed?

A former Court of Protection Judge and author of several books relating to looking after the elderly and vulnerable, Denzil Lush, is quoted as stating that he would never have a Lasting Power of Attorney himself because of flaws in the process and administration of these instruments. 

A Lasting Power of Attorney is a legal document whereby a person appoints another person or persons to act on their behalf and such authority continues in the event that the person concerned themselves loses mental capacity to be able to make decisions independently. There are two types of Lasting Power of Attorney; one that deals with Property and Financial Matters, and the other deals with Health and Welfare type decisions. If a person loses capacity and does not have a Lasting Power of Attorney in place then the Court of Protection will appoint a Deputy. 

In terms of what they can do and how they can do it, an Attorney and a Deputy are in many ways very similar concepts. The big difference, which Judge Lush points out, is that a Deputy needs to lodge a deposit or bond with the Court and produce accounts on an annual basis; these accounts are reviewed by the Court of Protection. There is no such safe-guard for Lasting Powers of Attorney. If there is a suspicion that abuse occurring then this can be reported to the Court of Protection and the matter can be investigated. In some cases where the Attorneys are in breach of their duties and have been found to be feathering their own nest then they will be disqualified and various remedies might then be applied. 

Judge Lush goes on to say that he would rather trust in the Court of Protection and the Deputyship appointment; this is all well and good for somebody who is legally trained, has worked in the Courts all his life, and essentially knows the people to whom he would be entrusting his affairs, but for most of us I would imagine we would prefer to appoint somebody that we trust to act for us. The problem lies in making a proper well-informed decision whilst we have the capacity to do so. The person to whom we entrust our affairs must be worthy of that trust and operate the Lasting Powers of Attorney properly. Children, friends and neighbours can all be untrustworthy and can abuse people, especially those who are vulnerable. In the current system what is required is for people to think carefully, honestly and objectively about who they wish to appoint and bear in mind that their choice also had an effect on others. For example choosing one sibling over another can cause problems, and appointing a friend or neighbour rather than a child can give rise to questions and disagreements. If these are properly thought through and everybody is, as it were, in the loop then there should be nothing to stop people making Lasting Powers of Attorney which are useful and successful when called upon. 

Judge Lush is quite right to raise awareness of problems that can arise in using Lasting Powers of Attorney and there can certainly be risks involved. However, a properly prepared Lasting Power of Attorney appointing somebody that you trust, having talked it through with your solicitor who will be part of the safe-guarding process, should provide a more cost effective and versatile support structure against the possibility of loss of capacity than the cost and administration of going through the Court of Protection. That said, it might be a good idea for some further safeguards to be incorporated into the process of establishing and administering of Lasting Powers of Attorney, and it will be interesting to see if the Government responds to the issues that have been raised.