Lucy Wood, wills, trusts and probate lawyer at B P Collins, responds to comments from former judge Denzil Lush who today said there are a lack of safeguards in the Powers of Attorney regime in England and Wales and that he wouldn’t sign one himself.
‘Lasting Powers of Attorney (LPAs), which allow someone to make financial or welfare decisions on your behalf when you are no longer able to do so, should not be written off. They can really work where there is a trustworthy relationship.
‘If you lose capacity, and you do not have an LPA (or an Enduring Power of Attorney) in place, someone will need to obtain a Court of Protection Order (COPO) to be appointed as your “Deputy” (the Court of Protection’s version of an attorney). A Deputy could be a family member or (in the event of a dispute) a person with no family connections to the donor.
‘The deputy can only do what they have applied for under the COPO and may need to apply to court again for other decisions, so the process is a lot more rigid and takes longer for decisions to be reached.
‘The COPO is also more costly. When it is in force, you need to pay an insurance bond each year and report to the Court of Protection by filing accounts. There are charges for this.
‘It may work in some situations but it adds stress and burden on the Deputy and may put some people off from acting altogether.’
While an LPA is preferable for the above reasons, LPAs which appoint inappropriate attorneys can lead to a donor’s funds being misused. To help avoid the impact which such misuse can have on families, and to be fully aware of what is involved, Gary has highlighted where a solicitor can really help:
- Although LPAs can be created without one, a solicitor can fully explain the pros and cons and what an LPA means for the donor.
- They can make sure that the donor has capacity and that there is no undue influence in appointing their attorneys.
- Solicitors are a good sounding board when the client is deciding on who is appointed and how they can act.
- Solicitors can even add an extra safeguard by storing the LPA until needed as it is a live document once registered with the Office of Public Guardian.
- Solicitors can be appointed as attorneys too, in more complex situations.
If you would like to discuss LPAs further, please contact Lucy on 01753 889995 or email firstname.lastname@example.org.