Powers of Attorney: Alleviating risks a response to the comments made by Denzil Lush
Retired Court of Protection Senior Judge Denzil Lush spoke on the Today programme on BBC Radio 4 earlier this week. Readers may have heard Mr Lush expressing his personal concerns about the ‘risks’ posed by the creation of Lasting Powers of Attorney (“LPA”), claiming they were fraught with opportunities for abuse and that personally, he would prefer the alternative of a Court of Protection appointed Deputy, albeit more time consuming and costly.
An LPA is a legal document allowing you to choose the person or people you want to make decisions on your behalf should you lack the mental capacity to make those decisions in the future. Being an Attorney under an LPA is a role that carries immense responsibilities and represents an investment of great faith and trust by the donor.
Should an individual lose capacity without an LPA in place, someone will need to apply to the Court of Protection to become their Deputy in order to manage their affairs. This is a complex, time consuming and expensive process involving numerous forms, information gathering and applications.
Appointed Deputies and Attorneys must follow the Code of Practice of the Mental Capacity Act 2005 which means they must act in the best interests of the donor. If they are not, the Court of Protection can step in and remove them. There are unfortunately no statistics available to show how many cases of abuse by Attorneys or Deputies occur. However, it is worth pointing out that there have been many cases of abuse by Deputies as well as Attorneys. The Court of Protection can investigate conduct of Attorneys and Deputies and if they find misconduct, can remove them. Mr Lush has of course seen many matters in front of him which are indeed cases which have ‘gone wrong’; the very nature of his role means he is unlikely to have seen in practice, as we have, the excellent way in which LPAs work for many families in difficult, stressful times.
Taking into account the safeguards in place for Deputyships and LPAs and the costs implications of both (both to set up and on an ongoing basis, which for Deputyships can be thousands per year), at Whitehead Monckton we believe well drafted LPAs are the better way to ensure your affairs will be dealt with by someone you trust, rather than leaving the Court to decide who should be your Deputy. We have specialist legal advisors who can do things to mitigate the potential shortcomings in the LPA regime.
We will always discuss with our clients the suitability of individuals as attorneys, and if you are concerned, you can appoint professionals as your attorneys in the knowledge we will provide independent advice and will look after your best interests well under our Professional Attorney Programme. Despite Mr Lush’s arguments, LPAs, if arranged and administered diligently and correctly, are still powerful and effective tool to ensure peace of mind.
If you would like to discuss your existing LPAs or are considering creating them, please contact us:
Maidstone: 01622 698040
Canterbury: 01227 643266
Tenterden: 01580 767535
Docklands: 020 7531 2991