If you ask a solicitor to draw up a Lasting Power of Attorney for you this will enable you to choose and appoint someone to make decisions for you if you become incapable of doing so yourself. These decisions can relate to your health, your welfare and property and financial affairs.
It was August last year, when former Senior Judge Denzil Lush’s comments regarding LPAs attracted media attention and sent private client lawyers across the country in to a flurry. The former Senior Judge suggested that LPAs had insufficient safeguards and indicated that he would not sign an LPA for himself. Following this my colleague, Paul Baker, wrote an article endorsing the benefits of LPAs and highlighting that during the 2016-17 financial year, the number of applications to the Court of Protection involving the conduct of attorneys represented only 0.01% of the total number registered in England and Wales. Paul Baker’s article is available on the Price Slater Gawne website and for anyone who hasn’t already done so, I would recommend reading it.
I agree with the conclusion reached in Paul’s article that LPAs remain a positive legal tool for ensuring that your affairs are looked after in the event that you lose capacity. It also appears that people have not been deterred from creating new LPAs as the statistics show that there was a 28% increase in 2017 as compared to the previous year. This was despite the public concerns raised by Denzil Lush and following his comments the final quarter of the year still showed an 18% increase compared to the same period the previous year. So is there any reason to be concerned when creating an LPA?
I have worked on a number of cases involving Office of the Public Guardian investigations of attorneys and in many cases these have been caused by the attorney misunderstanding their role and responsibilities rather than any deliberate wrongdoing. Sadly, that isn’t to say that there aren’t unscrupulous attorneys and unfortunately I have also encountered these and the aftermath of their actions. However, my experiences have not been limited to attorneys and there are also deputies who have been guilty of financial misconduct even including cases that involve professional deputies. Therefore, based upon my experience and considering the figures outlined above, I can’t agree with all of the views expressed by Denzil Lush last year regarding LPA’s.
There are risks with any type of appointment involving a vulnerable adult but I do think that there is more we can do to safeguard LPAs. I would also encourage further reforms in this area. The current forms to create an LPA are relatively straightforward and many people complete these forms without obtaining legal advice. It is a positive that this saves on legal costs and encourages more people to register LPAs. However, it is likely that people are missing opportunities to incorporate additional safeguards in to the LPA. It is possible to restrict the powers of an attorney and provide conditions that limit the circumstances in which those appointed can act.
A solicitor can also provide impartial advice regarding the choice of an attorney and help to explain potential capacity issues. This might provide an additional layer of costs but these are minimal compared to the costs involved if there is a dispute requiring the involvement of the Court of Protection at a later date.
I also think that there could be further reforms to provide additional optional safeguards in an LPA that are similar to some of the requirements of a deputyship. A deputy is required to maintain a security bond, which is like a form of insurance and they also have to provide reports to the Office of the Public Guardian. I see no reason why these features could not be included in LPAs. I would suggest that they should be optional and there would be additional costs to be borne by the donor of the LPA. Many people are happy to pay for phone insurance and other similar measures to protect valuable assets, so it seems to me that some additional costs to safeguard your estate in the event that you lack capacity, would be a reasonable measure and proportionate cost. At the moment these options aren’t available but if they were I think it would alleviate some of the concerns expressed by Denzil Lush. In the meantime I would echo his statement that it is worth obtaining some legal advice before creating an LPA.