Denzil Lush, who was a senior Judge in the Court of Protection for 20 years prior to his retirement, has recently criticised the system of Lasting Powers of Attorney (LPAs). He said that an LPA can have a devastating effect on family relationships, and its lack of transparency causes suspicion and concern.
What is an LPA?
An LPA is a legal document in which the person making it (the Donor) chooses someone they trust (the Attorney) to make decisions on their behalf. LPAs can be made for financial decisions (Property & Financial Affairs) and / or medical and care decisions (Health & Welfare).
An LPA for Property & Financial Affairs takes effect – but does not need to be used – from the moment it is registered by the Office of the Public Guardian (OPG). An LPA for Health & Welfare takes effect once it has been registered by the OPG and the person who has signed it becomes mentally incapable.
Is Denzil Lush right to criticise LPAs?
The vast majority of the millions of registered LPAs are used in the best interests of those who have signed them. Unfortunately, there are times when people who have lost mental capacity fall victim to financial abuse. At Buckles, we have experience in dealing with this type of situation, and will often need to make applications to the Court of Protection.
Denzil Lush was used to seeing these types of application in his senior position at the Court of Protection, and so his views are perhaps tainted by being ‘war-weary’ when all he has seen in his career are matters where LPAs have been abused.
Is there an alternative option?
The alternative to an LPA is to apply to the Court of Protection for the appointment of a Deputy when someone loses the capacity to make decisions for themselves. The court selects the Deputy – possibly a family member, but not necessarily – rather than the person themselves choosing who they want to look after their affairs.
What costs and timescales are involved?
Deputyships are expensive to apply for when taking account of the initial court fees, doctor’s fees and possible legal fees – totalling many thousands of pounds – plus the ongoing fees every year that a Deputy is in post. A Deputy can take up to a year to be appointed, which is a significant delay at a time when the person concerned is incapable of making any decisions for themselves.
Contrast this with an LPA, where the court and any legal fees are much lower than those involved with a Deputyship application. The LPA is made at a time when a person has capacity to make decisions for themselves, and so the delay in registering the document – which is far less than that involved with a Deputyship application – is inconsequential.
Are there any other points to consider?
There are safeguards in the Deputyship regime that do not exist under the LPA regime, in that there is much more scrutiny on a Deputy than on an Attorney, unless concerns are raised. It is therefore sensible to take legal advice about LPAs before deciding how to proceed.
