A generation of vulnerable people could be faced with problems managing their finances and assets if improvements to the process of setting up a Lasting Power of Attorney (LPA) is not improved, according to leading law firm Roythornes Solicitors. Elizabeth Young, head of private client at Roythornes, discusses for Lawyer Monthly below.
Denzil Lush, the hugely respected former Master of the Court of Protection, has vocalised his long-known views on the robustness of our system for regulating and supervising decisions made on behalf of those no longer or never able to make decisions for themselves.
After years of seeing first-hand how an LPA can be used to abuse the most vulnerable in our society, I do consider the views of Mr Lush a stark reminder of the importance in making the right decision of who should be appointed as an attorney and involving professionals to support people make these decisions wisely.
Highlighting the importance of choosing an attorney comes at a time when the Ministry of Justice is keen to simplify and digitalise the system for completing LPAs.
Mr Lush has described the promotion of using LPAs as a ‘crusade’ which ‘demonised’ the legal alternative - the appointment of deputies by the Court of Protection itself. There is indeed potentially more security as the deputys themselves must have insurance, whereas attorneys do not, and so if they do relieve their ward of funds, a deputy’s bond can be called in.
Deputys must produce accounts and submit these annually for scrutiny so problems and concerns that arise are far more likely to be spotted. Although, if proper safeguards are put in place, and the right people are appointed, then LPAs do work well for most people who prepare them.
When LPAs were introduced in 2007, applications required the involvement of a suitably qualified professional and that nominated people were notified upon completion of registration. However, both conditions have since been dropped, which has lost a certain level of safeguarding and protection.
Perhaps the Ministry of Justice (MOJ) might listen to Denzil and reintroduce previous safeguarding measures, or consider ways of how to improve the LPA process. Denzil’s comments could also instigate the introduction of insurance and accounting requirements for attorneys, and a more stringent creation process.
Even if this is only at a professional level, it would be useful to improve best practice, and reverse the relaxation of the MOJ’s stance. We could also request for banks to notify when LPAs have first been actively used, with the Office of the Public Guardian looking at random samples of LPA attorneys for details of account activity.
We are all often reminded of our aging population and the full extent of the impact of dementia. For many years Roythornes, as a matter of course, has advised client families on the importance of making plans in case of potential health problems that could inhibit them making decisions for themselves, whether a short-term injury, such as a bump to the head, or a longer-term debilitating illness.
We hope Lush’s comments will not deter people from thinking carefully about what would happen if they sustained a health problem that would affect their decision-making capability, and they understand the importance of future-proofing themselves and their families against difficulties that could have an impact on their personal lives and businesses.
We take great care in helping our clients choose the right team of people to represent their interests, if the worst happens. The risk of abuse is hopefully averted through implementing a whole string of safeguards that we work with clients to put in place.
