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Partner and Head of Family Law, Rugby
In anticipation of tonight’s ITV Tonight programme, Caroline Bielanska, former SFE CEO, and author and trainer for STEP, reaffirms the importance of Lasting Powers of Attorney (LPA) and the safeguards people can put in place to ensure their LPAs are robust and the importance of using a specialist lawyer.
Caroline’s support comes off the back of recent comments made by retired Court of Protection judge Denzil Lush. Lush said that he would never sign a Lasting Power of Attorney because it can have a ‘devastating effect’ on family relationships. Lush stipulated he would be happy in the absence of putting in place an LPA to have his affairs managed by a Deputy appointed by the Court of Protection (the Court). Lush said this allows for more scrutiny from the outset as a Deputy has to provide a full list of assets and annual accounts, and a security bond.
Back to basics…
An LPA is a legal document allowing an individual (Donor) to appoint someone they trust (an Attorney) to make decisions on their behalf should they become mentally incapable of dealing with their own affairs.
A property and affairs LPA allows your Attorney(s) to make any decisions that you would normally make about your property and financial affairs. This may include paying bills and potentially selling your house or buying property.
A health and welfare LPA allows your Attorney(s) to make decisions about your personal welfare, which may include giving or refusing consent to medical treatment. Decisions under a health and welfare LPA can only be made when the Donor lacks the capacity to make them.
Deputy– A Deputy is someone who is appointed by the Court to look after either, the property and finance and/or the health and welfare of a person who lacks the mental capacity to act for themselves. If a person lacks capacity without an effective power of attorney in place an application has to be made to the Court for the appointment of a Deputy. The Deputy appointed may not always be the person the individual lacking capacity would have otherwise chosen. In addition, the costs of a deputyship application and timescales make the deputyship route less attractive to many.
So what is best…
Hundreds of thousands of LPAs are registered each year. It is sadly an inevitable part of modern society that some attorneys will abuse their position. However, with the ability to report suspected abuse to the Court and the Courts’ determination to reduce the small amount of cases where attorneys abuse their position, the overwhelming opinion in the legal profession is that the LPA route provides sufficient safeguards to ensure the protection for vulnerable persons.
I have set out below some of the safeguards that LPAs provide:
The person making an LPA can name people to be informed when an application is made to register the LPA. Those named people can then object to the registration on specified grounds which include (amongst others) fraud or undue pressure or that the attorney proposes to behave in a way that would contravene his authority or would not be in the Donor's best interests.
A certificate provider must certify that the Donor understands the purpose of the LPA and the scope of the authority; that no fraud or undue pressure is being used to induce the donor to create the LPA; and there is nothing else that would prevent the LPA being created.
Preferences and instructions can be set out in the LPA limiting the decisions an attorney can make. Despite this ability, care needs to be taken so as to ensure the LPA is functional or even be rejected at the point of registration.
On reflecting on Lush’s comments, I believe they serve as a reminder that a specialist solicitor can ensure that an LPA application is completed correctly, and that there is no scope for misunderstanding on the part of either the person making an LPA or the attorneys. A suitably qualified solicitor can act as an important safeguard against fraud and coercion, ensuring that the person making the LPA is fully aware of and comfortable with what they are signing.
I believe an LPA is an extremely important legal document, which ought to be considered by everyone (irrespective of age) and as important as a Will. LPAs as opposed to the Court appointment of a Deputy provide choice and options to the Donor.
Secondly, making people aware of LPAs and their options is the real remaining obstacle to ensuring that people put in place suitable professionally drafted legal documentation to provide both them and their families with peace of mind.
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