Lasting Power Of Attorney – A Lack Of Protection For The Vulnerable?
The Law Of…Stopping Vulnerable People From Being Exploited
A serious lack of safeguards in lasting power of attorneys (known as LPAs) are putting some of the most vulnerable at risk, according to retired Court of Protection senior judge Denzil Lush.
Zena Soormally, Associate Solicitor in Court of Protection, takes a closer look at LPAs and why understanding their purpose is key to keeping those entering into them safe.
What Is A Lasting Power Of Attorney?
A lasting power of attorney is a legally binding document that identifies who will be able to make decisions about someone's future, including their finances and welfare, when they're unable to do this (this is known as no longer having capacity).
It's important to remember that a LPA is created when a person still has capacity to make decisions.
A "Lack Of Transparency" Over LPAs' Purpose
With around 2.5million LPAs currently in use in the UK, Denzil Lush has highlighted a "lack of transparency" over the use of LPAs, which has caused "suspicions and concerns" amongst those coming into contact with them.
He also suggests that the Ministry of Justice (MoJ) acted in a "disingenuous" way when promoting LPAs as well as launching a "vigorous campaign", which is why they're so widely used.
"I sometimes deal with LPA matters when they arise in my health and welfare cases and I agree that there's a lack of adequate safeguards in relation to the misuse of a LPA", Zena explains.
"For example, in order to be a deputy a person has to pay into a security bond. This money can then be claimed if the deputy ever uses the money of the person they're acting on behalf of inappropriately."
"This offers protection for the person the deputy is acting for, but this step isn't required for LPAs, which is really worrying."
Responding to the judge's criticism, the MoJ said that "safeguarding people is our priority. We take swift action if any abuse is reported and have a zero tolerance approach to any attorney or deputy who breaks the law."
"It Was Devastating…It Took His Memories"
Research by Brunel University last year showed that there's been a failure to collect data on cases where those with LPAs have experienced financial abuse at the hands of people they've appointed as their attorney.
A war veteran, Frank Willett, was sadly one of these victims. In his early 80s and living with dementia, Frank decided to make his neighbour – Colin Blake – his attorney back in 2003.
Colin then took £9,000 out of Frank's bank account for his personal use in the same year in one transaction, but as he was Frank's attorney this wasn't questioned by his bank. Frank's relatives also had no idea about what was happening.
It took until 2008 for Frank's daughter Lesley to successfully revoke the power of attorney granted to Colin, but by this point Frank's savings and the medals he gained from 35 years of service in the army had disappeared.
Lesley also discovered that her mother's wedding ring, jewellery and family photographs had been taken. "It was devastating", she commented. "It took his memories".
Deputyship – A Better Alternative?
According to Denzil Lush, whilst the MoJ supported the use of LPAs it also "demonised" the alternative – the appointment of a deputy.
A deputy (someone who holds a deputyship) is someone who the Court of Protection appoints to manage the finances and/or welfare of someone who doesn't have capacity to make decisions for themselves.
Unlike someone acting under a LPA, deputies have to abide by a stricter set of rules, including providing a security bond that can be claimed if there is an issue with them spending money incorrectly.
Although this seems like the safer option, there are some problems with deputyships.
"Most clients who I have advised would rather deal with an LPA (which is put in place while a person still has capacity and chooses who to appoint should they lack capacity in the future), rather than waiting to seek a deputyship later (which is applied for after a person lacks capacity, costs more money, and requires an annual fee)", Zena comments.
"I'm really concerned about the understanding that an individual has about the impact of an LPA when it is prepared without legal advice."
"Speaking to a legal professional before making a decision between LPAs and deputyship is important as they'll be able to outline the pros and cons of each for your specific situation."
"It’s clear that investigations into the misuse of LPAs by the Office of the Public Guardian (OPG) have increased over recent years but, in my professional experience, it can take a great deal of work to get the OPG to investigate concerns."
"The OPG has said, on a number of cases I’ve been involved with, that the client should approach the local council to raise a safeguarding concern or, if that fails, that they should make an application to the Court of Protection (COP)."
"In at least two recent cases, the OPG has told clients that the process of applying to the COP for a decision is relatively cheap, which is not the case if the matter is contested, which, with LPAs, they often are."
"The local councils often feel that because there is a person appointed under a LPA, they do not want to intervene and attempt to override the LPA, which means that clients often end up challenging the issue in the COP, which is costly, time-consuming and stressful."
"I believe that it's better to enter into a LPA, which is done when a person has capacity, alebit it would be good to see an increase in the safeguards available under a LPA. When choosing the person who is given the power of attorney (known as a donee), the person granting it (known as the donor) should, in my view, discuss it with those who may, in the future, express concerns about the actions of the donee, to try to prevent future issues before they happen."