Comment Magazine Issue 7

All power
to powers
of attorney
Former senior Judge Denzil Lush said
this year that he does not wish to grant
a Lasting Power of Attorney (LPA)
appointing others to act on his behalf
in respect of his finances or welfare
should he lose the mental capacity to
do so himself.
Being aware of many of the cases he
has presided over, and indeed acting
on some of them, Annabelle Vaughan
is sympathetic to his view.
The current LPA regime leaves a lot
to be desired. It is open to abuse
and, perhaps more commonly, family
disputes. The biggest mistake people
make is choosing attorneys they think
they ought to appoint rather than those
who would do the job well. Warring
siblings are unlikely to heal their rifts if
asked to decide between themselves
how they spend what would be their
inheritance. Your attorneys should be
people you can trust implicitly to act
in your best interests. Any conflict will
inevitably impair their ability to do so.
There is a lack of routine supervision
over the preparation of Lasting Powers
of Attorney and their operation. Once
an LPA is, at least at face value, executed
correctly and registered there is very little
scrutiny of how the document is used.
LPAs and their predecessor, Enduring
Powers of Attorney, were designed to
give the donor (the person who grants
the power of attorney) control over who
manages their affairs, and it is presumed
that they will choose trustworthy
individuals to do the job. There is no
routine supervision of attorneys by the
Office of the Public Guardian (OPG), the
executive arm of the Ministry of Justice
responsible for their supervision.
It is not safe to assume that third
parties will immediately spot an attorney
acting in a way that is contrary to the
best interests of a donor. A bank will
not query the actions of an attorney
withdrawing large sums of money
provided that they have registered the
power on their system. In fact, most
abuse cases come to light because
care fees or other routine expenses go
unpaid - incidents which take time to get
attention.
Many lay attorneys will go along
merrily doing what they think their loved
ones would have wanted rather than
having regard to the law.
There are important legal principals
around how decisions should be made
on behalf of people who lack capacity. A
member of the public once told me he
wouldn’t be told how to run his mother’s
affairs under an LPA. When I said “yes, but
I’m sure you will adhere to the principals
of the Mental Capacity Act,” he fell rather
silent. I didn’t say this to be unkind - there
is enough onus on would-be attorneys
to demonstrate that they have read or
understood the law that they should act
under.
The OPG will investigate once a
concern is raised, but these investigations
can take time and it is not unusual that
the donor’s assets are exhausted by
the time an investigation is concluded.
Remedies may include closer supervision
of the attorney or an application to the
Court of Protection to appoint a deputy
in the stead of the attorney.
If you do not make an LPA and lose
capacity, then the Court of Protection
will appoint a deputy to make decisions
about your finances or welfare. This
offers a far more robust regime of choice
over the appointed deputy and their
ongoing supervision.
Deputies are required to file annual
accounts and are routinely visited by
OPG caseworkers who check that all
is well. In most cases it will be more
expensive to pursue this route and it is
also important to be aware that the
Court can make orders of its own volition,
and so the obvious candidate may not
be appointed.
A further alternative is to appoint
professional attorneys. Again, this can
be more expensive, but could avoid far
more costly litigation in complex cases
where there are no suitable lay attorneys.
Ultimately, whether or not to have
LPAs will be a matter of personal choice.
However, this decision should not be
arrived at lightly or through a sense of
obligation.
Annabelle
Vaughan’s
top tips
• Think carefully about who you
appoint as your attorneys. If you
can foresee problems with your
chosen attorneys either think again
or try and air a grievance to see if it
can be resolved.
• Read the Mental Capacity Code
of Practice. It is an accessible
document that sets out how
decisions should be made. This
will help you understand how your
attorneys should act and whether
an LPA is right for you, and them.
• It is possible to put guidance and
instructions for your attorneys in an
LPA, but do bear in mind that they
will need to act in your best interests
if you lack capacity in the future.
Think about how you would want to
be treated in those circumstances
rather than imagining yourself as fit
and healthy in a care setting.
• Instructions to your attorneys are
binding and so need to be drafted
carefully. The OPG will delete any
instructions that are unworkable,
so you should take legal advice if
including instructions. You cannot
instruct your attorneys to do
something unlawful in the UK, such
as arrange for euthanasia on your
behalf.
• Think about when you want
your LPA to be used. You must be
mentally incapable for a Health
and Welfare LPA to be used, but
your attorneys can assist you with
your finances under a Property and
Affairs LPA if you are infirm. In
these circumstances, your attorney
will clearly need to be someone who
respects your autonomy and ability
to make decisions to instruct them.
Contact us direct
Annabelle Vaughan
Partner - Head of Court of Protection
& Wills, Trusts & Probate
023 9236 4312
annabellevaughan@coffinmew.co.uk
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