There may be a number of reasons why you want to make a Power of Attorney, however, in light of the recent press coverage of the case of Frank Willett, a Dunkirk and Normandy veteran who is reported to have been exploited by his neighbour, you might be asking yourself is this something I really want to do.
In 2000, Mr Blake moved next door to 78 year old ex-serviceman Frank. Frank quickly began to rely on Mr Blake and his wife to help him with doctors' visits, shopping and the like. Frank's daughter and her husband lived 300 miles away in South Wales and so initially was content with the support provided by Mr Blake and his wife.
Unfortunately, Mr Blake's intentions were not honourable and in 2003, Frank, now in his early 80's and suffering from Dementia was taken to a local solicitor to execute an Enduring Power of Attorney ('EPA'). The EPA appointed Mr Blake as Frank's attorney and gave Mr Blake control over Franks financial affairs. It is also reported that at this time, Mr Blake also persuaded Frank to make a new Will nominating him as the main beneficiary.
Within weeks of appointing Mr Blake as his attorney, Mr Blake started to make substantial withdrawals from Frank's bank account. Such large withdrawals were unusual for Frank. Over the years Frank had been careful with his money and had built up savings in the order of £60,000. In February 2003, Mr Blake withdrew just short of £9,000 in a single transaction but because he had provided the bank with a copy of the EPA, the transaction was not questioned. Mr Blake also drew out more money, to pay his own bills.
Sadly, in 2004 Frank was no longer able to live on his own and moved into a care home. Mr Blake then used the EPA to sell Frank's home.
Frank's daughter Lesley became suspicious about Mr Blake and his motives and sought to challenge the EPA in Court. Unfortunately, at this time they had no idea that Frank's savings account had been emptied and they could not prove Mr Blake was unfit to be Frank's attorney. The Judge therefore upheld the EPA, but did order Mr Blake to provide annual accounts, which is more stringent that the usual procedure.
Lesley and her husband made frequent reports to the Public Guardianship Office and the Court of Protection, but were told everything was satisfactory.
In 2007, Lesley learnt that Mr Blake was selling up and moving to France, but most concerning was that Frank's care bills were in arrears. Consequently, in 2008, the new body, the Office for Public Guardian (OPG) investigated and revoked the EPA. Lesley was appointed as a Deputy by the Court.
It was only once she had been appointed as Deputy did Lesley find out the extent of the misappropriation by Mr Blake. Lesley discovered that all Frank's money had gone, together with his service medals, her mother's wedding ring and jewellery and all the family photographs and documents. Lesley reported matters to the police.
Frank sadly died in 2009. The police pursued Mr Blake and last month he pleaded guilty to theft. He was sentenced to four and half years in prison.
So, what lessons can be learnt from such a sorry tale of events. Firstly it is important to understand that at the time Frank executed the Power of Attorney, he executed what is known as an Enduring Power of Attorney (EPA). EPA's were replaced by Lasting Powers of Attorney (LPA) in October 2007.
EPA's could be prepared and executed with little oversight or scrutiny and it was only when they came to be registered (once you had lost capacity) that friends/family would be notified and would then have the opportunity to raise any concerns. By this stage the attorney could have been using the EPA for many years, as the EPA is valid from the moment it is executed unless you have specified a limitation to say, for example that the EPA will not come into operation until you lose mental capacity.
An LPA in much the same way as an EPA is a way of appointing someone you trust as your attorney, to give them the legal authority to make decisions on your behalf in the event that you lose mental capacity at some point in the future, or if you no longer want to make decisions yourself.
There are two types of LPA, an LPA for property and financial decisions and an LPA for health and care decisions.
One of the main differences between the old style EPA's and new LPA's is the need for a 'certificate provider'. LPA's, as a safeguard require an independent person to confirm that you as the donor, understand the power and the importance of the LPA and that you are not under any pressure to make it. A second safeguard, is that you can list a number of people to be notified in the event of any application to register the LPA. The LPA, unlike an EPA cannot be used until it is registered with the Court of Protection.
Appointing someone to be your attorney is a big decision. It is not one which should be taken lightly. I would recommend that you always have a least two attorneys. You can specify how you want your attorneys to make decisions (either jointly, or jointly or severally) and you can be quite specific in this regard. For example, for practical reasons you may want to allow your attorneys to make able to make some decisions on their own, rather than always have joint consent, but for the bigger decisions, (e.g. financial transactions over a certain value) you may want to say they have to act jointly, to safeguard against a rogue attorney.
If you have complex financial affairs, it would be prudent to consider having a professional attorney alongside your trusted family member/friend, that way the burden of managing a complex portfolio of assets is shared with a professional and you know that the professional will be managing your assets correctly. There is of course an additional cost with having a professional attorney and this needs to be balanced with the overall value of your assets.
If you do have concerns about the conduct of an attorney, a good starting place is the Office for the Public Guardian (OPG). The OPG now has much greater investigative powers to intervene if necessary. You can also report suspicions to the police and consider making an application direct to the Court of Protection (if you are an interested party) to have the attorney removed. The Court of Protection is being faced with an increasing number of 'financial abuse' claims and are becoming more robust in their handling.
Notwithstanding the developments with LPA's and the wider investigative powers of the OPG, there is still a gulf between the requirements of an attorney and that of a Court appointed Deputy. Many campaigners argue that attorneys should be required to file annual accounts, in the same way as deputies are required to and there should be similar protection in the form of security bonds to protect donors in the event of abuse. The former head of the Court of Protection, Denzil Lush argues that whilst deputyships are more expensive, he believes it is worth the extra cost to have the safeguards. It remains to be seen whether there will be a change in the law but I rather suspect that LPA's will be with us for a long time to come, perhaps with a few tweaks here and there.