Recently one of the former senior judges in the Court of Protection – Denzil Lush – raised some concerns regarding Lasting Powers of Attorney (LPAs).
In brief, a Lasting Power of Attorney gives somebody the ability to look after your affairs from the perspective of financial matters and in relation to your health and wellbeing.
Judge Lush was concerned about a lack of safeguards in the LPAs for Property and Financial Affairs which could lead to a scope for financial abuse of the person who has granted the power (the donor). However, what needs to be mentioned is that if you do use a Solicitor to make your LPA the scope for abuse can be minimised.
A Lasting Power of Attorney is an incredibly powerful document. From a financial perspective it allows an attorney to do absolutely everything that the donor could do themselves from dealing with the payment of bills up to the sale and purchase of property. With that in mind the first thing that you must do is to choose somebody with an impeccable financial record whose interests would not adversely conflict with your own. This is a discussion that we will always have with clients to ensure that the person chosen is always going to be up to the job at hand. You can also try to deal with the passage of time by perhaps choosing attorneys of a different generation and via the use of replacement attorneys.
In addition, you can tailor the LPA by the use of instructions given in the document and this can ensure that your affairs are transacted in the way that you would wish. This can be tricky however, regarding the actual wording used as there is much case law regarding the validity of certain words and phrases. Again the use of a legal expert in this field of law can be much needed.
You may think that if a former senior judge is making comment about LPAs that the alternative system must be perfect. Unfortunately it is not. If someone loses mental capacity to deal with their affairs then there will be a need to apply to the Court of Protection on their behalf to do so, that person will then be appointed as what is known as a Deputy. Unfortunately the application to the court can take some time to put into place – typically six months. This can make things very difficult as payments cannot be made during that time.
Also after you are appointed as Deputy you will have yearly responsibilities such as the provision to the court of yearly accounts and putting into place an insurance bond.
Therefore making an LPA can be problematic if not done properly. In addition, one of the downsides of our new digital age is that the more something becomes readily available, the easier it is for unsavoury characters to take advantage of that. However, we must not let that put us off making LPAs as the alternative through the Court of Protection can be far from ideal. Therefore if you do take expert legal advice you can ensure that safeguards can be put into place to do as much as you can to prevent abuse.
If you would like to talk to one of our team please contact us on 01642 356 500 (Stockton) or 0191 206 620 (Newcastle) to arrange an appointment with one of our team. If you would just like to briefly discuss LPAs we do offer a free 20 minute consultation on a Wednesday in our Stockton office.
