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22 August 2017

Lasting Powers of Attorney: A response to Judge Denzil Lush

Former Court of Protection judge Denzil Lush has vowed that he would never sign a Lasting Power of Attorney (LPA) himself due to the “devastating effect” it can have on families, which is in clear conflict to the advice given by Steeles Law and others in the legal profession.

On BBC Radio 4’s Today programme, Mr Lush warned the public of the risks of signing an LPA.  He put this down to the lack of safeguards that leave the process open to potential abuse.  The judge stated that he would prefer the alternative situation, where the Court of Protection itself appoints deputies.  Under a deputyship, he argues that there is greater scrutiny, accountability, supervision and security because of the requirement to provide a full list of assets and annual accounts.  However, the process is often lengthy and far more costly when compared to an LPA.

An LPA is a legal document allowing an individual to appoint someone they trust (an attorney) to make decisions on their behalf should they become mentally incapable of dealing with their own affairs.  Many believe that they do not need an LPA until they are elderly.  However, this is not the case, as you could become mentally incapable of dealing with your own affairs if you have an accident, or through illness or mental confusion.

There are two types of LPA and you can choose whether to make one or both types:

A property and affairs LPA allows your attorney to make any decisions that you would normally make about your property and financial affairs.  This may include paying your bills and potentially, selling your house.  You can put restrictions and conditions on your attorney’s powers in the LPA if you wish.

A health and welfare LPA allows your attorney 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 on your behalf when you lack the capacity to make them yourself.

Many people believe that their spouse, civil partner or “next of kin” automatically have the legal authority to handle their financial or personal affairs, however, this is not the case.  You might ask them to do certain things but if you become unable to give instructions, they will not have the authority to continue to handle your affairs or to make important decisions.  If you have not made an LPA, they will have to apply to the Court of Protection for appointment as your deputy.

The benefit of making an LPA now is that if, at some stage in the future, you suddenly become ill and cannot deal with your own affairs, your attorney will be able to step in and look after everything for you until you recover.

Although Mr Lush did draw attention to the case of Frank Willett, a war veteran who was exploited by his neighbour when he appointed him as his attorney, such cases are thankfully rare.  The situation demonstrates the importance of carefully considering who you appoint as your attorney.

At Steeles Law we would recommend that you have your LPA drawn up by a professional legal practitioner.  Just like a Will, there are certain stipulations which need to be met to make an LPA valid.  You can limit the risk of abuse by ensuring that your LPA is correctly administered.

If you have any questions, or wish to make an LPA, do not hesitate to contact us.

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