Are lasting power of attorneys dangerous?
A Lasting Power of Attorney (LPA) can give you peace of mind that someone you trust will immediately be able to make decisions about your finances and welfare if you unexpectedly lose the capacity to make those decisions yourself. However, if they are not set up and managed correctly, they can pose a risk.
Recent comments made by Denzil Lush, former Senior Judge of the Court of Protection, have highlighted how, in certain circumstances, LPAs can be open to abuse and have a devastating effect on the families involved. An article, published by the BBC, detailed the case of Frank Willett, a Dunkirk and Normandy veteran. Mr Willett had dementia and, with his daughter living over 300 miles away, he was convinced by his neighbour, Mr Blake, to appoint him as his attorney under an enduring power of attorney (the predecessor to current LPAs).
Over the course of 4 years, Mr Blake took vast sums from Mr Willett’s bank account to pay his own bills and sold his house. During that time, Mr Willett’s war medals and his wife’s wedding rings and jewellery also disappeared. In July this year, Mr Blake pleaded guilty to theft, but it is unlikely that any of the money he stole will ever be recovered.
So, what can you do to avoid issues like this from happening?
The most important thing is that you understand what an LPA does and what decisions it will entitle your attorney to make on your behalf. If you have any questions or concerns about the process, a solicitor will be able to advise you on the best options. When you are making your LPA a ‘Certificate Provider’ (either a professional or someone independent who has known you well for at least 2 years) must sign a certificate in the document confirming that they have established your understanding and that you are not being pressured or unduly influenced when making the appointment.
Next, give careful consideration to the people that you are giving power of attorney to – think about how they handle their own affairs. You should be confident that the individual(s) in question understand your feelings and will act accordingly. If you have any concerns, you do have the option to appoint a professional attorney (such as a solicitor) instead.
Finally, when registering your LPA there is an option to notify individuals (such as other family members). This is no longer mandatory but the above case shows that this may be advisable if those family members are not involved in the process. These individuals will then have three weeks to register any concerns about the LPA.
What if things go wrong?
In response to comments made by Denzil Lush, the Ministry of Justice (MoJ) said it protects people who may be taken advantage of by attorneys or deputies. A MoJ spokesperson said “Safeguarding vulnerable 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.” “If there is evidence that someone has abused their position, we can refer cases to the Court of Protection to urgently revoke a lasting power of attorney or deputyship order.”
What are the other options?
If an LPA is not put in place, and an individual loses capacity, somebody (perhaps a family member) will need to apply to the Court to be appointed the individual’s Deputy, authorising them to manage the financial affairs on their behalf. This process can take up to 5 months or more to complete. This option is more expensive than an LPA but a Court appointed Deputy is required to submit annual accounts and, when the application for the appointment is made, all family members are informed about the process, and have the option to intervene if they disagree. A solicitor can advise you and assist in making the application and can also act as Deputy.
For more information about Lasting Power of Attorneys or Court of Protection applications, please contact Glen Miles, Partner, Head of Vulnerable People.
Published: 16 Aug 2017