Lasting Powers of Attorney (LPAs) have been getting their fair share of column inches this summer, mainly due to well publicised comments from former Senior Judge Denzil Lush made last month on BBC Radio 4 (if there ever was a better name for a Judge then legalmatters has yet to hear it).
Following on from his retirement from the Court of Protection (COP), Judge Lush recently shared his views that LPAs were fraught with opportunities for abuse. Specifically, he commented that due to the ‘devastating effect’ it can have on family relationships, he would never choose to sign an LPA himself but rather would instead prefer the costly alternative of a court appointed Deputyship.
LPAs enable a trusted individual to make decisions on behalf of someone who is unable to do so or has lost mental capacity. They can be a vital element of later life planning when considered and drafted effectively, providing peace of mind for those who need it the most.
After 20 years at the coalface of the COP, Judge Lush is undoubtedly one of the most respected figures in the profession (and, as it happens, a thoroughly nice chap) but whilst his comments are certainly food for thought, it is important to consider them in context.
In light of the 2.4 million LPAs registered in England and Wales, around 6,000 cases concerning abuse have been brought to the courts; a comparatively tiny proportion. Having spent two decades dealing with the fallout of family disputes and fraudulent behavior, Judge Lush is understandably cynical of the process, in the same way that very few Personal Injury lawyers cycle a pushbike to work. They are more wary than anyone of the risks and consequences.
But to discount LPAs entirely is unhelpful and unfair. With the risks he highlights, there are also great benefits for vulnerable individuals of any age, providing them with both stability and peace of mind knowing that decisions will be made by someone that they trust.
It seems instead that rather than throw the baby out with the bathwater, the issue is perhaps not ‘don’t appoint an attorney’ but instead ‘don’t appoint the wrong person as attorney’. If an individual does find themselves in a position where they do not have an appropriate (and above all, trusted) friend or family member to appoint, there is always the option of appointing a professional attorney to undertake that role in any case.
LPAs are important documents delegating major powers and should not be taken lightly.
The relaxing of the safeguards that were previously in place have undoubtedly exacerbated the issue of misuse. But this just strengthens the argument that these types of documents should be implemented with proper qualified, regulated, legal advice.
Rather than focus on the negatives of the LPAs, it has instead been suggested that the public should be educated as to their importance. Whilst their negative impact will often make headlines (goodness only knows the Daily Mail loves a scoop), cases arise every day where an LPA could have prevented a dispute ending up in court. Increasing awareness would improve attitudes towards later life planning, as well as encouraging people like you to understand the role of an attorney. In turn, this would lead to greater and more careful contemplation when you come to making the decision, therefore reducing the risk of problems arising in the first place.
The most effective way to ensure that you’re making the right decision is to seek professional advice. Not something that can be rushed, LPAs require careful consideration and will be unique to the circumstances of the individual, accounting for specific needs and requirements.
The cynical among you may find it interesting to learn that these comments were made in the foreword to his new book on the subject. Reports that his next publication will be called ‘Crystal Ball and other reasons why I don’t need a Will’ are yet to be confirmed.
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