Retired former senior judge of the Court of Protection (the CoP), Denzil Lush, last week told BBC Radio 4's Today Programme on that he would never sign a Lasting Power of Attorney (LPA) believing they lack transparency and safeguards. Instead, he would prefer that the CoP appointed him a deputy (essentially an attorney appointed by the CoP) should his capacity fail him. Having heard these comments from such an authority, many may now be wondering, on reflection, whether an LPA is right for them.
Mr Lush is a well-respected lawyer and former member of the judiciary in England and Wales. He became the senior judge of the CoP on 1 October 2007 until his retirement last year. As senior judge, it was, in part, his purpose to preside over the most serious cases within the remit of the CoP to include the financial abuse of those lacking mental capacity at the hands of their chosen attorneys. That Mr Lush does not recall many cases where attorneys were acting within the confines of their powers and the law will be unsurprising to many.
The most recent statistics from the Office of the Public Guardian (the OPG), the body responsible for registering and investigating concerns about LPAs, show that there are currently 2,478,758 registered Enduring Powers of Attorney (the predecessor to the LPA) and LPAs. In 2016 - 2017 the OPG conducted 1,266 investigations which resulted in 272 applications to the CoP. Of those applications made to the CoP it is not known how many related to LPAs nor how many resulted in findings against appointed attorneys. Even if one were to assume that all 272 applications related to LPAs and resulted in findings of wrongdoing against attorneys, this would equate to 0.01% of the total number of powers of attorney registered. No matter how one might try to interpret statistics, this is a minuscule amount. What is more, that figure is far from Mr Lush's estimation, originally stated in 1998 and reaffirmed earlier this week, that one in eight - or 12.5% - of cases could be abusive. In a recent Twitter exchange with Barbara Rich, an eminent barrister specialising in CoP work, she agreed with my stance that the data does not support Mr Lush's proposition: "Unless, as retired SJ Lush suggested, there's a vast reservoir of hidden financial abuse which raises no suspicion & is never reported at all".
My work involves frequently advising upon, preparing and registering LPAs. I have taken cases where attorneys have acted otherwise than in accordance with their powers and I have read many case reports - to include those presided over by Mr Lush - and I am acutely aware of how things can go wrong. Would I sign an LPA? Yes.
It can be incredibly reassuring to know that, if you are unable to make a decision for yourself through accident or illness, a person you have chosen will make the decision for you acting in your best interests. Making an LPA ensures that the person you want to make decisions for you will be able to do so whilst potentially preventing a stranger or someone in whom you may not repose trust and confidence (i.e. a deputy chosen by the CoP), from having this power. Making an LPA now will make things easier in the future, by comparison to the expensive, time consuming and often difficult application process to be appointed as a deputy. A pre-registered LPA can be used immediately whereas an application for the appointment of a deputy can only be made once capacity is lost and then it will take several months to process. By making an LPA now, you can start the discussions with your chosen attorney about what you want to happen in the future.
The role of an attorney is not suitable for everybody and, as the cases which feature in the news highlight, some will not act with integrity. The selection of chosen attorney or attorneys is, therefore, not to be taken lightly. One must think carefully about who to appoint and consider how well they know them and whether they have the right skills and qualities to act on their behalf? Most people choose a relative or close friend, but in certain circumstances a professional, such as a lawyer, can be appointed. Most professionals will charge for their time and expertise and people should ensure they have discussed and approve of the charging regime at the outset. If things do go wrong, the OPG is empowered to investigate concerns that may arise during the currency of the LPA.
Deputyships, as favoured by Mr Lush, have their place. They enable the appointment of someone to manage the affairs of those who have not made arrangements by power of attorney during the currency of their capacity. There are features of a deputyship which can be more beneficial than LPAs such as the deputy's security bond which, in the event of financial abuse, acts as an insurance policy to reimburse the patient for any irrecoverable losses. Indeed, there are certainly cases where the best advice favours the appointment of a deputy over the appointment of an attorney - in situations where it was very unlikely that members of the family would work well together and where difficulties would arise if certain members of the family were appointed attorneys and others were not, for example. However, those cases are few and far between. For most people, the extensive application process coupled with the added costs of applying and the annual running costs present too great a barrier.
It is also worth noting that, just like attorneys, not all deputies do act with integrity and there are case reports where deputies have perpetrated financial abuse against the very people whose finances they have been appointed to manage and protect. Mr Lush himself has presided over such cases.
It is almost always possible to improve upon things over time. LPAs are no different. Any further discussion concerning LPA safeguards and transparency prompted by Mr Lush's comments should be welcomed. LPAs still remain an important addition to one's plans for their future and, provided good legal advice is taken at the outset, they remain, in my opinion, the best option for the majority of people.