Why Taking Advice From A Community Care Lawyer Before Making Lasting Powers Of Attorney Is Crucial
Community Care Law, Mental Capacity, Lasting Powers of Attorney, Professional Deputies and Attorneys, Community Care Lawyers, Court of Protection, Community Care Solicitors, Health and Social Care Solicitors
Strong criticism of Lasting Powers of Attorney (LPAs) by recently retired Senior Judge Lush received a barrage of media coverage this week. Judge Lush told Radio 4’s Today programme that LPAs are open to abuse and up to 15% of LPAs may involve abuse by the family member appointed to act as Attorney.
Judge Lush said that he personally would not be making a Lasting Power of Attorney. He argued that it was much safer to rely on the Court of Protection to appoint a Deputy to act for him, if he lost mental capacity, to manage his property and financial affairs. This is because an LPA requires the Donor to delegate power and control to a family member to make decisions on the Donor’s behalf.
Judge Lush was speaking from long experience, having dealt with many complex cases where Attorneys, usually family members, had been abusive and the cause of much family division. Indeed, all of our Community Care lawyers have dealt with cases where they have had to act to safeguard adults at risk where Attorneys have abused their trust.
However, it isn’t the LPAs in themselves which are the problem. There are two main issues. The first is the lack of regular scrutiny of Attorneys by the Office of the Public Guardian (OPG) and the second is the absence of legal advice and guidance prior to the LPA being made.
Judge Lush said that he would prefer Deputyship, if he became incapacitated, because the Court of Protection has the power to audit the activities of Deputies. Deputies are required to file Annual Reports regarding their financial management of the vulnerable adult’s affairs. Although the OPG has similar investigative powers in relation to Attorneys, such investigations are expensive and time-consuming for the OPG to conduct. There is also no Annual Report requirement for Attorneys and a lack of resource to proactively investigate. Currently the OPG will only act where complaints are brought to its attention rather than having a “spot check” system.
I believe that extending the OPG guidance from Professional Deputies and Attorneys to cover family member Attorneys so that they have to meet certain standards would be a positive step. This would mean that people appointed as Attorneys would know that any financial mismanagement would be scrutinised.
The OPG may be concerned that such monitoring of Attorneys would not only be expensive, but put people off becoming Attorney for their nearest and dearest. However, this is an important safeguard for our elderly and vulnerable population.
The second issue is that the Donor and the Attorney have not had the benefit of vital legal advice. The accessibility of the online LPA forms and the lack of guidance about the process of appointing Attorneys on the OPG website has left the system open to abuse. For example, the consequences of an Attorney failing to act in the Donor’s best interests should could be made clearer on the LPA form.
In recent years, the OPG has simplified the layout of the LPA forms so that they are more user-friendly. The rationale for this was because some solicitors’ charges for making LPAs were so expensive that they put people off using them. They wanted people to feel confident entering into an LPA, without a lawyer’s input. But this has had its downside.
Joe Egan, president of the Law Society, responding to Senior Judge Lush’s comments, stressed the importance of legal advice when making LPAs: “Because of the significant influence a power of attorney places over your affairs, it is important to get legal advice from a solicitor on whether it is right for your circumstances.”
Our Community Care legal team encourage people to make Lasting Powers of Attorney long before they need an Attorney. Crucially, the Donor must have the capacity to understand what this means and the powers they are granting. If there are doubts as to the Donor’s capacity, then it is always advisable for the Donor to instruct a professional who is trained to assess their mental capacity to make the LPA.
We also emphasise the importance of choosing a suitable Attorney. This needs to be someone who understands their responsibilities, has high integrity and who will act in a vulnerable person’s best interests. A Donor who does not take legal advice may appoint a close loved relative who is simply not suitable for the Attorney role.
Most importantly, we make sure the Donor is always our client and we take instructions from the Donor, not the friend or relative who initiates contact, who will become the Attorney. This is something that can be blurred and it is often the Attorney filling in an online LPA.
I believe the trend towards people dealing with LPAs themselves, without the benefit of legal advice, has been a huge mistake and has lead to Judge Lush’s criticisms. At the very least, free legal guidance should have accompanied the simplified form.
Also, resources and powers should be given to the OPG to ensure that when an individual makes an LPA that both they and their Attorneys understand what is expected and the Donor is protected should something go wrong.
I disagree with Judge Lush and believe that a well-drafted and regulated LPA is a useful tool. We are living in an aging society with the likelihood that a large proportion of us will live into our 80s and 90s. In many cases, this will result in many of us becoming dependent on others to make decisions about our finances and care on our behalf. The majority of us will want to make provision for this eventuality before it’s too late.
If you would like to know more about making an LPA, or have concerns about an Attorney who is mismanaging their powers, please contact us today on 01273 609911, or email firstname.lastname@example.org to find out more.