As a result of recent television coverage further light has been shone upon the comments made by retired Court of Protection judge Denzil Lush. Mr Lush had previously expressed his personal concerns about the ‘risks’ posed by the creation of a Lasting Power of Attorney (LPA), claiming they were fraught with opportunities for abuse and that he personally would prefer the (albeit more time consuming and costly) alternative of a Deputyship.
So it now begs the question as to why Mr Lush’s comments have made the headlines and how can LPA’s help safeguard your affairs.
An LPA is a powerful and binding legal document that allows you to choose the people you want to make decisions on your behalf, when you lack the mental capacity to make those decisions yourself. These people are called Attorneys. There are two types of LPA; these can only be made whilst a person still retains mental capacity. There is an LPA for Property and Affairs which allows a person to authorise, a person or persons of their choosing, to manage their finances should they become physically or mentally incapable of managing them themselves. This may include paying their bills, investing money on their behalf, or even selling their home to fund care if this becomes necessary. This type of Lasting Power of Attorney can be used as soon as it has been registered. There is also a Lasting Power of Attorney for Health and Welfare decisions. This again allows a person to authorise, a person or persons to make decisions regarding their health and welfare. This can often include making decisions about their medical treatment or the type of care home they receive, as well as day to day issues such as diet, clothing etc. This type of Lasting Power of Attorney can only be used when the person has lost their mental capacity.
If an individual has not made an LPA and then loses capacity, it is likely that their affairs will need to be managed. It is in these circumstances that an application must then be made to the Court of Protection for someone to be appointed as their Deputy, in order to be able to legally manage their affairs. This can be a complicated and onerous process and it is likely to take several months before the Court will appoint someone as a Deputy. When a Deputy has been appointed there are various safeguarding measures that need to be complied with and the Deputy is required to regularly report back to the Court.
Regardless of whether the appointee is an Attorney or a Deputy, they must follow the Code of Practice of the Mental Capacity Act 2005 which means that essentially they must always demonstrably act in the Donor’s best interests at all times. If they do not, 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 (OPG). Health and Welfare LPAs cannot be used until the Donor lacks capacity. If you are making a Property and Financial Affairs LPA, you may include a restriction meaning that the LPA similarly cannot be used until you have lost capacity.
The application process also 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 inappropriately pressured to prepare the LPA. Everyone signing an LPA to agree to act as an Attorney has to confirm that they will follow the principles of the Code of Practice.
However, the main safeguard remains the Donor making the right choice of Attorney. It is important to remember that if you lose capacity and do not have a valid LPA in place then it will be left to the Court to decide who should be appointed as your Deputy and will be responsible for managing your affairs. If you do not wish to leave this decision in the Court’s hands then it is important you prepare an LPA.
There are unfortunately no official statistics available to show how many cases of abuse by Attorneys or Deputies occur. However, it is worth pointing out that there have been cases of abuse by Deputies as well as Attorneys. If there is any indication that Attorneys or Deputies have acted unscrupulously, the Court has the power to investigate and can ultimately remove them from their position.
Mr Lush’s comments are useful in that they highlight both the importance of LPAs and ensuring that the right safeguards are in place. They are also a reminder that a specialist solicitor can ensure that an LPA application is completed correctly, and that there is no scope for misunderstanding on the part of either the Donor or the Attorneys.
Enoch Evans LLP’s Wills, Tax and Probate team contains specialist Lawyers who are experts at advising on both Lasting Powers of Attorney and Court of Protection Applications. Enoch Evans LLP has also recently launched ‘Care Solutions for the Elderly’, which allows the Firm to offer dedicated support to co-ordinate all aspects of elderly care needs for clients. Please visit http://enochevans.co.uk/full-home/for-you/wills-tax-probate/long-term-care/ to find out more about this or contact a member of the Wills, Tax and Probate team if you are worried about Dementia yourself or have a family member suffering from Dementia.