Denzil Lush, a retired court of protection judge, is reported to have said in the foreword to his new book that he would not draw up a lasting power of attorney (LPA) and that if he were to become incapacitated he would prefer to rely on the court appointing a deputy to manage his affairs.
Mr Lush cites a lack of safeguards, accountability and transparency in the LPA process. His remarks come at a time when the office of the public guardian (OPG) is encouraging individuals to consider entering into LPAs. Mr Lush acknowledges, however, that “the vast majority of LPAs work satisfactorily” and that there is “no real research on the extent of abuse.” His own estimate that one in eight LPAs involves abuse is not backed by any research and may perhaps be affected by the fact that, as a court of protection judge, Mr Lush most often dealt with the cases that had gone wrong in some way.
Should you consider an LPA?
An LPA is a powerful legal document which is drawn up when you have full mental capacity and appoints a person or persons of your choice to act as your attorney to deal with your financial affairs if you become incapable of doing so. If no LPA is in place then a deputy will be appointed by the court of protection to run your affairs.
Mr Lush is correct that the appointment of a deputy does have greater safeguards built into the process than an LPA, particularly one drawn up online without advice. For example, a deputy is required to enter into a security bond with an insurance company that compensates the incapacitated person if the deputy should abuse his position. A deputy is also required to provide accounts on an annual basis to the court. However, this higher level of oversight does come at a cost; the premium for the bond is payable by the incapacitated person and the set up cost of the appointment of a deputy typically runs into thousands of pounds rather than the hundreds paid when creating an LPA with professional advice. In addition, it can take many months from the time you are incapacitated for the deputy to be appointed while, if the LPA has been registered in advance, it can be used immediately.
When considering whether to draw up an LPA it should be remembered that if you consult a solicitor who is experienced in this area of work they will be alert to the possibility that pressure might be being brought to bear on you to draw up the LPA in favour of a particular person. They will also discuss with you ways of building safeguards into the LPA process. You could, for example, provide that expenditure over a specified amount has to be authorised by all the attorneys rather than by one acting alone. You could also consider providing in the LPA that your attorneys should produce accounts to an independent person on a yearly basis thus replicating some of the safeguards included in the court of protection process.
Who should be attorney?
Your choice of attorney is crucial. Mr Lush points out that when abuse occurs it is most often carried out by family members, usually children. You should bear in mind that your child is not necessarily the best choice to act as your attorney, particularly if they have shown in the past that they are not skilled at managing finances. Similarly if you have more than one child, and there is any kind of friction between them, you should think carefully before appointing your children: if only some of your children are appointed this can lead to suspicion and bad feeling, while if all of your children are appointed they may disagree over how best to administer your affairs potentially leading to deadlock.
You could consider appointing another family member, a close friend or a professional person to act on your behalf if your children are not appropriate choices. This has the advantage that the choice of the attorney is made by you and not by a court who may have limited information as to your preferences. If there is no other appropriate person, and you do not wish to appoint a professional, then in these circumstances relying on the appointment of a deputy if necessary might be the best option.
In a straightforward case, however, building safeguards into the LPA process by appropriate provisions, and seeking professional advice from the outset, would avoid the delays, cost and lack of control associated with the court of protection deputyship process while incorporating some of the advantages of a deputyship.