This week, retired Court of Protection judge, Denzil Lush, commented on the BBC 4 Today Programme that in his opinion, there are significant risks posed by an individual creating a Lasting Power of Attorney (’LPA’).
In his view, because an attorney under an LPA is not supervised, his powers can be, and are, easily abused, and not only by the predatory ‘good friend’. He pointed out that 90% of the cases dealt with by the Court of Protection involve attorneys who are family members and of that number the majority are sons or daughters who have acted fraudulently.
In the above interview, Dezil Lush stated that his preference would be to use a deputy instead. Deputies are court-appointed individuals who are monitored closely with various safeguards in place:
- the deputy has to prepare and submit annual accounts,
- a Surety Bond has to be purchased that will pay out in the event that the funds are misused,
- and regular support meetings are scheduled.
We accept that there are dangers if unscrupulous attorneys are appointed. The cases before the Court of Protection bear this out. However we are firmly of the view that with proper advice, the advantages in putting in place an LPA outweigh the disadvantages in not doing so. By not doing so you will be relying on chance that someone trustworthy will apply to be your deputy when you no longer understand what is going on.
The disadvantages in failing to sign an LPA
1. A deputy is only appointed if you lose mental capacity.
One of the great benefits of a Finance LPA is its flexibility. You can get assistance from your attorney when you are frail physically and cannot cope with dealing with your own finances on a day to day basis. Once you are better, you can take back the responsibility. And if you are unhappy with the way the attorney is handling your affairs, cancelling the LPA is straightforward.
2. You have no control over who becomes your deputy.
By this stage you have lost capacity and anyone can apply to the Court to be your deputy. It could be a friend, a neighbour, a relative – it might not be anyone you would have chosen if you had thought about it while you had capacity.
In contrast, when you sign an LPA, you choose your own attorney. If you want to put in safeguards there is scope within the document. You can appoint a number of attorneys to act jointly if you like, or if you do not want family and friends to have that sort of responsibility, you can appoint a professional, such as a solicitor either to act with the family or on their own. This would safeguard the position and be cheaper and more flexible than the deputyship route. The key is choice.
3. A deputy cannot take general control over your health and welfare.
A deputy has to apply each time action is needed as the Court rarely grants a general order. This is a cumbersome process where health issues can arise suddenly and unexpectedly.
In contrast, the Health and Welfare LPA, which can only be used by your attorney if you lose mental capacity, can be tailored to your wishes as you see fit. It can be used to make decisions such as which nursing home you are going to live in, the type of treatment you might prefer if you have a particular illness, and whether or not to turn off the life support machine. You can set out your wishes within the document. Increasingly care and nursing homes are asking for these documents as they are helpful in making sure that patients get the care they have requested.
4. The procedure to become a deputy is time-consuming and expensive; and beyond the reach of many.
The initial Court fee alone is £320 and annual costs are incurred for each application to the Court and for the Surety Bond. Deputies usually need professional assistance when preparing annual reports and applying for interim orders if, for example, the house needs to be sold. It is normal to spend thousands of pounds a year in running a deputyship.
In contrast a Lasting Power of Attorney costs £82 to be registered and if you seek professional advice, £350 plus VAT to get it prepared, certified and registered. There are no ongoing costs in most cases.
We believe that an LPA if arranged diligently and correctly is an effective tool to ensure peace of mind, the key being that you choose the right individual/s to manage your affairs for you. Using a solicitor to help you prepare the documents and to ensure that no one is coercing you to sign them is sensible and can help to avoid abuse.
The Court of Protection
If you are worried about financial abuse whether by an attorney or a deputy you can report your concerns to the Court of Protection: -
Tel. 0115 934 2777