By David Lunn
I was very interested to read on my BBC News app this week that a recently retired Senior Judge from the Court of Protection (Denzil Lush) was raising serious questions about Lasting Powers of Attorney (LPAs) and vowing never to make one himself. Naturally, as someone who promotes LPAs to my own clients on a very regular basis, this is not something I was expecting to read from a well informed source and I started to wonder – does he have a point? Are LPAs not the valuable tools that we have been promoting all these years? Should clients (as he seems to be suggesting) not make LPAs but rely on the Deputyship regime instead?
Before offering a view on Mr Lush’s comments, it may be helpful for the reader if I quickly explain the key concepts in play here and the rationale behind those comments.
What is a Lasting Power of Attorney?
LPAs are documents through which you can decide, at a time when you are of sound mind, who should make decisions for you if you should ever lose the ability to make those decisions for yourself. The person (or people) you appoint are called “Attorneys” and the person making the LPA is often referred to as the “Donor” (because he/she is giving the authority to the Attorneys).
There are two types of LPA dealing with different types of decision – one deals with property and financial affairs and the other deals with health and welfare. You might appoint the same attorneys in both documents or you might appoint different attorneys but, either way, they are separate documents and they cover different things.
Your property and financial affairs attorneys would make decisions and take actions such as accessing your money, paying your bills, managing your investments, selling your home, buying a new home, paying care home fees etc. You can set this up in such a way that it can only be used to make decisions for which you lack the requisite capacity to make the decision yourself or you can set it up in such a way that, while you retain your mental capacity to make decisions, the LPA can be used but only with your permission (naturally, should you lose your decision making capacity in the future, your Attorneys would then carry on making those types of decision for you).
Your health and welfare attorneys would make decisions concerning your medical treatment, where you should live, who visits you and other decisions concerning your day to day routine. A key difference between this and a property and financial affairs LPA is that a health and welfare Attorney is never allowed to make a decision for you which you could make for yourself. You must always make those health and welfare decisions which you are capable of making.
What is a Deputyship Order?
The LPA regime exists to enable you to choose who will make decisions for you should you be unable to make them yourself but if you have not made an LPA and if you then lose your mental capacity, someone can apply for a Deputyship Order instead. This permits them to make decisions on your behalf. The point here is that someone is asking the Court to make an order giving them authority – it is not your choice of person. Moreover, the Court does not know you, nor does it know the person making the application. It does not know how trustworthy they are, whether you trust them or how you would have felt about that person being appointed. In addition, whereas you can make an LPA when you are fit and well so that it is all set up and ready to go if something should happen to you suddenly, you cannot apply for a Deputyship Order on someone else’s behalf until they are already incapacitated. At that point you are at the beginning of the process. There can be quite a gap between applying for the Order and receiving it and during that period, nobody has any authority to make decisions. That is an important point to bear in mind.
What point was Mr Lush making?
Mr Lush expressed the view that there are not enough safeguards within the LPA regime – they are too open to enable an Attorney to financially abuse the Donor and that there are far more safeguards within the Deputyship regime. For example, although the Court does not know the Donor or the Attorney (known as the Patient and the Deputy in this context) personally, the Court does ask for evidence setting out details of (among other things):
Whether the Patient really does lack the capacity to decide things for himself/herself (in the form of a doctor’s report)
Details of the family circumstances of the Patient
Details of the financial circumstances of the Patient
Details about the proposed Attorney (including whether they have a criminal record, how often they propose to visit the Patient and other details designed to work out the likely suitability of the Deputy).
The Court will not grant a blanket authority for the Deputy to do whatever he/she thinks fit in all circumstances, there will be boundaries within which the Deputy must operate and he/she will need to go back to the Court if further powers are needed later. The Court will also require an insurance bond to be put in place so that if the Deputy proves to be dishonest, the insurance will reimburse the Patient’s lost money. In addition, the Court will supervise the Deputy (the level of supervision being set once the Court has decided on how much risk is involved).
Mr Lush cited an example of a person who appointed his neighbour as his Attorney under an LPA and the neighbour helped himself to a lot of this gentleman’s money and property. The family did not realise until it was too late what was happening.
Is the answer, therefore, to avoid LPAs and to rely instead on Deputyships?
For most people, the answer must be a firm ‘no’ – though there are certainly some exceptions to that rule. The weakness in the LPA regime is that if a vulnerable person is bullied into picking unsuitable attorneys – perhaps making the LPA online without receiving any independent advice – then a great deal of damage can certainly be done. This can be mitigated by spreading the message loudly and clearly that those who are thinking of making an LPA should go and see a specialist solicitor (perhaps a member of Solicitors For the Elderly – as SFE promotes strongly a culture of protecting the vulnerable and asking detailed questions to try to spot signs of possible abuse) but the risk cannot be removed entirely.
The problem with Mr Lush’s reasoning as I read it on my news app (and I do acknowledge that the article was written based on a longer radio interview which he gave and which I have not heard) is that it appears to draw a conclusion which does not flow logically from the starting point. I would agree that, generally speaking (but not always), it is a bigger risk to appoint a neighbour or friend as an Attorney than to appoint a trusted family member. I also acknowledge readily that some people do not have much family and that some families can be quite dysfunctional. I do not commend LPAs to everyone. If you have no family and you have a kindly neighbour who seems willing to help but you do not know that neighbour too well, it probably would be better for them to be appointed as a Deputy under the supervision of the Court rather than having carte blanche under an LPA. Similarly, if you have two children who cannot rub along together and who keep arguing over everything, it is a nuanced decision as to whether to appoint one or neither (it is rarely wise to appoint both in that scenario) and it merits a serious discussion. Often, Deputyship will be right for that family too. Neither system is perfect and both have their place.
We must not, however, lose sight of the fact that in the vast majority of families there is a close, loving, trusting relationship between the generation above and the generation below. I make hundreds of LPAs and the majority involve people appointing a spouse and/or children with whom the relationships are all excellent. It simply does not follow to say that those people should avoid LPAs.
Mr Lush is quite right when he says that there are fewer safeguards within the LPA regime than there should be – I would like to see the system tightened up considerably. As things stand, I think that people should always seek advice from a specialist lawyer within a reputable firm of solicitors and discuss their family and financial circumstances before making an informed choice as to what is likely to be the best option for them. I strongly believe that where there is a suitable person (or more than one person), who is able and willing to act, who has the necessary skill set and who is trusted and worthy of that trust it is best to set things up ahead of time so that if incapacity sets in, the person of your choice is already appointed within the parameters you set and can start helping you right away. I also believe in the inherent goodness of most people – I think that there are more good people out there than bad ones though I certainly keep a sharp watch for any signs that a bad person might be manipulating one of my clients.
At TWM we have a dedicated team of experts across our offices (many of whom are members of Solicitors For the Elderly and all of whom share that ethos). We can advise about LPAs and Deputyships and we can give you the advice that you will need to make the right choices for you.
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