Articles

  • October 2017
    Lasting Powers of Attorney are a sensible precaution


    Denzil Lush, the former Senior Judge of the Court of Protection, who retired in 2016 recently said, in a interview on the Radio 4 “Today” programme, that people should be more aware of the risks of Powers of Attorney and vowed never to sign one himself.

    Mr Lush explained that there is more scrutiny when the Court of Protection appoints a Deputy to manage the affairs of a person who lacks capacity to make decisions. A Deputy is appointed when a person has not completed an Enduring or Lasting Power of Attorney and no longer has the capacity to do so. Notice of the application has to be given to other interested parties and the Deputy is required to take out a security Bond, which will reimburse the patient if the money is spent inappropriately. The Court of Protection will issue an Order to the Deputy stating what he can do and what actions will require a further Order from the Court and an annual report will need to be submitted by the Deputy.

    The Ministry of Justice has introduced a service, which enables people to create Lasting Powers of Attorney (“LPAs”) online and Mr Lush said that the campaign has demonised the alternative option whereby the Court of Protection appoints a Deputy. In his former role, Mr Lush adjudicated in a large number of cases involving the revocation of Powers of Attorney where an Attorney acted inappropriately and he has had to deal with the outcome of a number of worst-case-scenarios. More than two million LPA registrations have been filed in the last ten years with the number of applications trebling between 2010 and 2015. Although the number of investigations into Attorneys has risen by nearly 50% in the last year, the vast majority of appointments are not problematic.

    LPAs were introduced by the Mental Capacity Act 2005, which was designed to protect and empower individuals who lack the mental capacity to make their own decisions. There is a code of practice that tells people how to make sure they are following the Act and Attorneys should also act in the best interests of the Donor.

    LPAs are appropriate documents for people to complete if they trust the people that they are appointing to act impartially and to respect the Donor’s wishes. It is usual to appoint family members and it is desirable to appoint more than one Attorney. A joint and several appointment, whereby Attorneys can act together or separately provides the ability for each Attorney to check on the actions of the other. It is also important that Attorneys who have similar views are chosen and geographical proximity to the Donor also helps to avoid problems.

    As an application for the appointment of a Deputy cannot be made until a person is losing capacity, it is sensible for people to complete LPAs in advance and to appoint the people who they wish to act for them after careful consideration and a discussion with the prospective Attorneys about their wishes. 

    For further information please contact Carol Lockett on 01394 279636 or by email to carol.lockett@jackamans.co.uk.

    This article provides only a general summary and is not intended to be comprehensive.  Special legal advice should be taken in any individual situation.

     

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