You may have heard the comments by retired Court of Protection Judge Denzil Lush about the risks posed by creating a lasting power of attorney (LPA). Mr Lush claimed that they provided opportunities for abuse.
An LPA is a legal document that allows you to choose the people you want to make decisions on your behalf when you lack mental capacity. These people are called attorneys. Being an attorney under an LPA carries responsibilities. An attorney is being trusted to look after the person making the LPA (the donor) in relation to their finances and/or their health and care.
If an individual has not made an LPA and then loses capacity it is likely that their financial affairs will need to be managed and so an application has to be made to the Court of Protection for someone to be appointed. This can be a complicated process involving numerous forms and applications. The person the court appoints is known as a deputy.
Attorneys and deputies must follow the Code of Practice of the Mental Capacity Act 2005 which means that they must always act in the donor’s best interests. If they do not then the Court can step in and remove them.
An LPA cannot be used until it has been registered with the Office of the Public Guardian. Health and welfare LPA’s cannot be used until the donor lacks capacity.
An application for an LPA requires that a certificate is provided by an independent third party confirming that the donor is fully aware of the effect of the LPA and that they are not being pressurised into making an LPA.
The main safeguard in making any LPA remains that you should choose the right attorney to act for you.
There are different safeguards if a deputy is appointed. A surety bond will need to be taken out so that if funds are misused the surety bond will provide compensation; there may be regular meetings between the deputy and a visitor appointed by the court and the court reviews an annual report of the financial affairs.
If you seek professional help in appointing an attorney or in making an application for the appointment of a deputy then there will be fees to pay and in our experience the costs of appointing a deputy and of looking after the finances under a deputyship are significantly more than those of having an attorney.
Unfortunately financial abuse can occur whether you have an attorney or a deputy.
At Dixon Stewart we believe that you should still consider making an LPA. If it is made and administered diligently and correctly it does ensure peace of mind. The key is to choose the right person or persons to manage your affairs for you. This does not always have to be a family member or a friend you could appoint a professional person.
If you would like to discuss LPA’s or the appointment of a deputy then please do contact us by telephone or at firstname.lastname@example.org