In the news this week, retired senior Judge Denzil Lush has warned of the lack of safeguards in the Power of Attorney system in England and Wales. Sarah Ripper, Partner in the Wills, Trusts and Probate team, responds to these comments.
A Lasting Power of Attorney (‘LPA’) is a document that allows you to appoint chosen people to act on your behalf in the event that you can no longer manage handling your affairs alone. You can only make an LPA whilst you have mental capacity.
Judge Denzil Lush’s view this week was that he did not believe there were adequate safeguards in the LPA document and that he would prefer to go through the alternative procedure which is allowing a family member, once you have lost mental capacity, to apply to the Court of Protection for a Deputyship Order.
My view is that LPAs are far preferable (as long as trusted and appropriate attorneys are chosen) for the following reasons:
- When making an LPA you get to choose who is appointed to look after your affairs. With the alternative Deputyship procedure, the Court chooses your Deputy so you have no say in who is appointed to manage your finances. The Court could choose a Deputy that has no family connections to you or who you would not have chosen to appoint yourself.
- The Deputyship process is a lot more rigid and time consuming. It can take at least 6 months to obtain a Deputyship Order leaving your family with no way to manage your finances in the interim. This process is therefore more likely to put a burden on your family, creating higher levels of stress in an already difficult time. However, if you set up a registered LPA while you have mental capacity, your attorneys can act straight away for you.
- A Deputyship Order is far more costly than an LPA. When your Deputy is finally appointed, they will have to annually pay a security bond of £320 on your behalf. Your Deputy also needs to file annual accounts with the Court. This is in contrast to drawing up an LPA which is a one off charge with no future costs for your attorneys to manage your affairs.
But what about the safeguards?
This is where a solicitor can really add value. We will sit with a client on their own and talk through the potential attorneys to make sure they are appropriate and that the client is not under undue pressure to appoint them. We also will discuss the option of including restrictions in a client’s LPA to make sure that safeguards are included to restrict attorney’s powers where appropriate. We also undertake bankruptcy searches against attorney’s names before the LPA is finalised.
Once a client’s LPA is registered, we also safeguard the original document by storing the LPA in our Strong Room. We only send a certified copy to the client, not the attorneys, and we will only release a certified copy of a client’s LPA to the attorneys with the consent of the client or, if appropriate, a doctor’s certificate to state the client has lost mental capacity.
If a client does not have anyone that they think will be appropriate to manage their affairs, the solicitor can be appointed as the client’s attorney.
If you would like to speak to Sarah Ripper surrounding any of the matters highlighted in the article, or for any other issues related to Lasting Powers of Attorney, please contact her on firstname.lastname@example.org or 01494 781361.