Retired Senior Court of Protection Judge Denzel Lush recently criticised some aspects of the Powers of Attorney system and, in his view, the lack of safeguards in place. Is he right or is he overstating the issues?
In brief, a Lasting Power of Attorney (LPA) allows you (the donor) to appoint one or more people (attorneys) to help you make decisions about your finances and/or your health and welfare, or to make decisions about those things on your behalf should you no longer be able to do so. LPAs are supervised by the Office of the Public Guardian (OPG) who simply check the document on registration and makes sure that it is in order.
Prior to 2007, LPAs did not exist. Instead we had a system of Enduring Powers of Attorney (EPA). The documents themselves were much more straightforward but the registration process was slightly more complex. With the EPA there was a requirement to inform at least 3 people from a list, the first of who were your closest family. There is no such requirement with an LPA, although LPAs do offer greater flexibility to replace attorneys, they allow for instructions and directions to be given to attorneys by the donor, and the OPG now has greater powers to investigate complaints about attorneys.
Of course there are always going to be people who will seek to use legal instruments for wrongdoing. This is why it is essential to obtain professional advice on your LPA. Choose your attorneys carefully. If you are picking some siblings as attorneys and not others, consider telling the excluded siblings so that they are at least included in the process. It is important that those people you choose to act as attorneys fully understand their duties, not least of which is the necessity to keep detailed accounts.
There are 2.5 million LPAs registered in the UK, and 650,000 were registered last year. Judge Lush has stated he only dealt with 6,000 in his career. Effectively about 1 in 400 cases ends up in court. These statistics would seem to suggest that the system generally works very well.
James Trescothick-Martin is a Senior Wills and Probate Lawyer based in our Bath office. He is experienced in all areas of Private Client Law including Lasting Powers of Attorney and Estates, as well as Trusts. He also specialises in contentious estate claims and matters in the Court of Protection.