Lasting Powers of Attorney

August 18, 2017

For many people Lasting Powers of Attorney continue to be suitable and very useful documents, as long as care and consideration are taken when they are put in place.

In a recent BBC article retired senior judge Denzil Lush has spoken out about a lack of safeguards for powers of attorney, and warns that these documents can lead to abuse and arguments within families.

Whilst we recognise the risks identified by Mr Lush, for many people Lasting Powers of Attorney (LPAs) continue to be suitable and very useful documents, as long as care and consideration are taken when they are put in place.

As Mr Lush points out, LPAs give significant power and control to an attorney when dealing with the affairs of the donor but with very little scrutiny of the attorney’s day to day actions, which can lead to abuse in some cases and a breach of the regulations and guidance in place for attorneys.

This is where the deputyship route has some advantages as there is much more oversight when the deputy is appointed by the court. In addition, a bond is required as a safety measure to protect the donor’s financial position and the attorneys are required to submit annual financial reports.

However, this can also create its own challenges. A deputyship application to the Court of Protection can easily take 6 to 12 months and is more costly than LPAs involving a capacity assessment and witness statements. Although this is good in that it offers greater protection to the vulnerable individual, it can cause problems for the family in the meantime. For example, who pays for care fees in the interim if the bank accounts cannot be accessed? What happens if the capacity assessment comes back as borderline so an order cannot be issued?

With LPAs the vulnerable person decides who they wish to appoint as their deputy and can provide their own personalised guidance on how they would like their affairs managed. Once registered, the LPA can be used immediately in any situation where the vulnerable person may lack capacity.

Although easier to use, in order to be secure, it is most important to choose the right attorneys. These should be people you can trust and who have your best interests at heart. Or you always have the option of having a professional attorney appointed, who will be regulated by their own professional body as well as the general guidance for attorneys.

We recognise that some of the advantages of the deputyship procedure, such as the security bond and the annual reporting, could be transferred to the LPA scheme to reduce the risks and increase attorney accountability. However, from our experience LPAs often work well for the families involved. As with anything, there are sometimes issues, but these can be kept to a minimum by carefully considering the contents of the LPAs and the choice of attorneys when they are put in place.

If you have any questions, or would like to discuss further please do not hesitate to contact Jane or Laura.

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