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Powers of Attorney – the saga continues

Nearly every day, the Court of Protection publishes a new judgment in line with the practice guidance on Transparency in the Court of Protection: Publication of Judgments, [2014] COPLR 78. This is proving to be an invaluable source of information, but the monotony of the type of cases is rather depressing.

Time and again, the Court has been required to intervene where the donor has become incapacitated and their attorneys have either acted improperly or are in dispute between themselves. The Mental Capacity Act 2005 and its supporting Code of Practice is quite clear on what attorneys can and cannot do. However, the ease with which a Power of Attorney can be drawn up means that people do not always understand the correlation between the process of preparing the document and the use of the document. LPA’s can easily be prepared using the government online portal and this is to be encouraged as people preparing LPA’s is preferable to the difficulties of appointing a Deputy.

However, as Voltaire is reputed to have said, ‘with great power comes great responsibility’. Attorneys do not simply have carte blanche to act as they wish. Their obligations are clear: they must act in the best interests of the donor, they must make applications to Court for approval of actions that are out of the ordinary and they must not consider that the donor’s money is theirs to do with as they wish.

SJ Lush is often involved in these decisions and his judgments are clear and concise. He has stated that the management of one’s own money is very different to the management of the affairs of an incapacitated donor and this is what seems to cause many of the problems. In the most recent case, Re EL (revoking a Lasting Power of Attorney) [2015] EWCOP 30 (29 April 2015)  he made an order revoking a Lasting Power of Attorney and invited a panel deputy to apply to be appointed.

In this particular case, it was found that the attorneys  saw “the money in their mother’s account as their inheritance and consider that they are entitled to dip into it during her lifetime”. This is clearly wrong but seems to be a worrying trend in the cases that are being reported.

Here at Clarke Willmott, we not only prepare LPA’s for clients, but will assist attorneys with their legal obligations. We can make applications to the Court for authorities to make gifts and statutory wills and we help people remain compliant by assisting them with preparation of accounts.

For further information about making a Power of Attorney, or advice about the obligations of an attorney, please contact Anthony Fairweather or a member of our Court of Protection team.