A leading authority questions the use of a Lasting Power of Attorney – our view
It was a surprise to learn that the esteemed Denzil Lush, who prior to his recent retirement, was a senior judge at the Court of Protection, has vowed that he would never sign a Lasting Power of Attorney (LPA) and condemned the Ministry of Justice for promoting them.
He advised on BBC Radio 4's Today Programme that people should be wary of the risks involved with appointing an attorney and advocated the appointment of deputies by the Court of Protection itself as the preferred route. The benefits being, the increased scrutiny and ongoing supervision that a deputy would have to comply with, despite the increased expense.
Perhaps we should have been less surprised as the Court of Protection hears all the cases of abuse when things go wrong. As such, it is understandable that Mr Lush might have a tainted opinion of the benefits that an LPA can provide when capacity becomes an issue. However, as a solicitors firm helping people register LPAs every week, we see lots of our clients using LPAs successfully and as intended, and still strongly recommend making them so you can appoint people that you trust to carry out your wishes, should you lose the capacity to do so yourself.
We are frequently asked about the safeguards that are in place when you make an LPA and always advise the following:
- Only appoint someone you trust; you are effectively giving them your legal identity so if you have any doubts at all, appoint someone else or a professional. If you are being pushed to make an LPA by someone, ask for help from your certificate provider, the impartial person who agrees that you have the required capacity to understand the significance of making an LPA, or call the Office of the Public Guardian helpline on 0115 934 2777.
- Consider appointing more than one attorney; if you are appointing more than one attorney, they have to be accountable to each other. You should carefully consider whether to appoint your attorneys on a joint and several basis meaning that they may act either together or independently; or jointly, so that they can only act together.
- Tell other people you have made an LPA; there is no shame in having one, it is just like an insurance policy for your mental health. That way other people will be much more likely to monitor how you are being treated by your attorney and can report any suspicious behaviour to the Office of the Public Guardian.
- If your situation changes, cancel the LPA; it is not uncommon that a change in your personal circumstances means that the person you appointed as your attorney previously is no longer the best placed person to act. Your LPA should be reviewed regularly to make sure it still works the way you had intended and that the best placed people are appointed.
Mr Lush also said the number of investigations into attorneys by the Office of the Public Guardian had risen by nearly 50% compared with last year but we believe this is a positive change as people become more aware of how LPAs should be used and recognise the need to report suspicions early. If more people report their suspicions, any abuse will be identified sooner and these attorneys can be monitored or removed if necessary.
The alternative of having a deputy appointed, as advocated by Mr Lush, does come with increased safeguards but it also comes at a price financially and is much more onerous on your appointed deputy. Whilst the cost of making and registering an LPA has just been reduced to £82 from £110, a deputyship application costs at least £400 to apply to the Court of Protection and £320 per year for the ongoing supervision. This type of application can only be made by someone if you have lost the capacity to manage your own affairs and if you have no close family or friends, the Court will appoint a professional who will have little or no knowledge of your personal circumstances.
So, whilst we understand the concerns raised by Denzil Lush, we believe that for most people LPAs can still be a useful way of appointing someone you trust to help you if you lose the mental capacity to manage your own affairs and we will continue to advise clients to make LPAs, albeit with caution as to who they appoint as their attorneys.