It is rare for Lasting Powers of Attorney to be in the news but comments made this week by Denzil Lush, a retired senior judge, has caused them to hit the headlines and provoke an outcry from specialist lawyers and professionals as to his comments.
Due to the ability to create LPAs easily and without any advice or independent safeguards he has commented that that he has greater confidence in a deputy order being granted under the Court of Protection (COP) rather than LPA.
We all hope we will be able to manage our own affairs but sometimes due to illness or accidents we may lose our mental capacity to do so and require assistance. If someone has created a Lasting Power of Attorney (LPA) as part of their estate planning, their nominated Attorneys can continue to act in the our best interest and look after that person’s affairs.
Where no LPA has been created, a 3rd party, such as family or friends must apply to the Court of protection (COP) to be appointed. This is a volumous paper exercise disclosing all personal and financial information to the Court, requires support from a medical practitioner and has initial Court costs of at least £400 and fixed legal costs of £950, so a minimum of £1,500. There are then ongoing reporting requirements on at least an annual basis to the Court that incurs continual fees and supervision. Any additional action such as authority to sell a property will normally incur further court application fees of £400 plus legal costs meaning the set up and ongoing costs of the Deputyship soon mount up.
Denzil Lush commented that he would not create an LPA himself and that he had not seen a Power of Attorney that worked well in his twenty years at the COP. This is akin to a firefighter saying he had not seen a house without it being on fire or an ambulance driver saying he has never seen a healthy person. The very fact that the Court of Protection only deal with disputed or problematic Lasting Powers of Attorney mean that all those thousands in operation with no issue never cross the threshold and his comments need to be taken with a proverbial pinch of salt. We would however agree with that you need to ensure that you are protected when setting up an LPA and if you are vulnerable or being influenced by someone against your Will, a Deputyship order would be preferable to a forced LPA.
The Government have continually tried to simplify the process of making a LPA and encourage individuals to do this themselves online and this is perhaps where the real risk lies, not with the documents themselves but the ease in which you can prepare them, or rather, others can influence you to or even force you to do so. Human nature being what is it there are always some bad apples and when a vulnerable elderly veteran has their war medals and life savings stolen by their attorney, under the legal guise of the LPA, that is what hits the headlines.
This is where ensuring that you take specialist advice off a Solicitor can ensure that you are safeguarded and that your interests are at the forefront of the LPA creation. Let us do our job and protect you, sometimes against your on family. Whilst they may appear to be helping you, sometimes this can mask ulterior motives.
For the majority of people contemplating later life planning, preparation of LPAs are an excellent idea, they are an insurance policy for the ability to carry on life, when the mind and or body are unable. To assist you we have complied some top tips to avoid the abuse some have experienced.
- Discuss and create documents through Solicitors to ensure they are correct and in your best interest.
- Choose your Attorneys with care – Only appoint people who you absolutely trust
- Consider using professional Attorneys who are subject to regulation such as Solicitors.
- Appoint Multiple Attorneys so that there is some level of oversight.
- Put conditions in your LPA to instruct your attorneys to compile annual accounts and have them sent to someone say a Solicitor or accountant for review each year.
If you are aware of a person who is potentially at risk then our advice would be to immediately contact the Court of Protection and to report it to the Police.
Our advice as a firm will always be to put Lasting Powers of Attorney in place, because none of know what is around the corner and they provide the peace of mind that a Deputyship cannot. Bear in mind that often their use coincides with a traumatic emotional event such as Dementia, going into residential care or an accident and the last thing your loved ones will want to do at this point is wade through a Court application to look after you when they can just get straight on with the job.
Contact our specialist Private Client team which includes members of Solicitors for the Elderly and STEP, the leading bodies in estate planning and creating LPAs, at your local office to gain peace of mind for your own affairs and ensure that you are protected.