Potential abuse of Lasting Powers of Attorney

Last night's ITV Tonight show discussed the potential abuse of powers of attorney, often by relatives.

It brought into the spotlight how simple the procedure can be if you make your own application using the online forms and how this method of application could be open to potential abuse.

This could make people question whether, whilst they retain mental capacity, they should put in place a Lasting Power of Attorney or instead rely on the alternative court procedure (a Deputyship application) should they ever loose mental capacity.

Earlier this year, retired Senior Court of Protection Judge, Denzil Lush raised concerns regarding the lack of safeguarding in the current power of attorney regime and put forward the view that a Deputyship application would be the preferred route because of the additional safeguards that it provided.

This is because if, as a result of a person losing mental capacity, an individual needs to make a Deputyship application to be legally appointed to manage that individuals financial affairs they are  subject to more stringent checking procedures and duty to account to the Court of Protection, including the necessity to obtain a surety bond.  Such procedures not required where an individual has been appointed under a Lasting Power of Attorney.

However, rather than agreeing with this viewpoint, we believe that this reinforces the importance of using a specialist lawyer in drafting a Lasting Power of Attorney which incorporates the appropriate safeguards into the document.

Whilst a deputy order may provide a more stringent process to implement, it does have its drawbacks.

The first is that those that can apply for a deputy order can include your relatives or friends as well as the local authority.  This could result in a person that you would not have wished to manage your financial affairs becoming involved in such.

A deputy order is also usually limited in that the deputy can only manage your property and finances and it is uncommon for a deputy order to be granted to cover health and welfare matters, whereas a Lasting Power of Attorney can appoint attorneys to deal with all these matters of you.

The process can also be more costly than to implement a Lasting Power of Attorney and can take double the amount of time to be granted by the court, thus leaving those who care for you in a disadvantaged position in terms of being able to handle your finances until the order is obtained.

Granted, Lasting Powers of Attorney should not be entered into without due thought and consideration as ultimately they are very powerful documents which allow your attorneys to step into your shoes and potentially carry out that which you can do, but a properly considered and thought out Lasting Power of Attorney can provide you with similar safeguards which would be achieved through a deputyship order.  In addition, by putting your affairs in place early you will be able to have an open conversation with your attorneys so that they can understand your wishes and what their responsibilities are.

You should bear in mind that you can only execute a Lasting Power of Attorney whilst your retain capacity.  Executing a Lasting Power of Attorney does not mean that you are immediately delegating authority to your attorneys to manage your affairs, but does mean that in the event of accident or illness that your chosen attorneys will be able to act immediately (provided that the document has been registered with the Office of the Public Guardian).

If you do not wish to appoint a family member or close friend as attorney then you can appoint a professional such as a solicitor (albeit they would be able to charge for their time in acting as the attorney). However, although this approach would incur charges such a professional would act as a neutral third party and make unbiased decisions that are in your best interests.

Finally, it is important to keep your Lasting Powers of Attorney under review, especially if your circumstances change and we would be happy to review your Lasting Power of Attorney with you or discuss the Lasting Power of Attorney procedure.