Retired Senior Judge Lush of the Court of Protection spoke out against Lasting Powers of Attorney in an article for BBC news and was quoted as saying that he would never sign one himself. His reason? He believes that there is far too much opportunity for financial abuse and this causes devastation within families. You can read the full article here.
This article has prompted a flurry of responses from lawyers who work in the Court of Protection and who regularly make Lasting Powers of Attorney (LPAs) for clients. The reason for the outcry is that the government has repeatedly publicised the value of LPAs as a way for us to choose for ourselves those that would take control of our finances if we were ever unable to do so ourselves, and that by making an LPA we avoid the involvement of the “dreaded” Court of Protection. (As an aside, we’re only talking about Financial LPAs here).
What is the view of us here at Giles Wilson? Our Melinda Giles is a member of Solicitors for the Elderly and a member of The Law Society Council where she represents Private Client solicitors: her view is that this is a conversation that is long overdue and where there is no clear answer.
Lasting Powers of Attorney were introduced in 2007 to replace Enduring Powers of Attorney. There is no doubt that there was too much risk in the previous system and there are certainly more safeguards in the current system of Lasting Powers of Attorney. The principle of choosing our own attorney and preparing for the possibility of incapacity rather than responding to the onset of it, fits with our desire for personal autonomy and is far preferable to the previous regime. However, the reality of our times is that abuse happens. Vulnerability is hard to define, and grooming is an unpleasant reality. Without putting too fine a point on it, domestic violence was unspoken about a few years ago, and the idea that perpetrators identified vulnerable victims and groomed them was unknown.
It is possible to make a Lasting Power of Attorney without the involvement of a professional. The Certificate Provider can be a neighbour or friend or any other person who may not have the education or courage to consider or confront the unsuitability of the Attorney, or the lack of awareness of the person making the Power. Although one of the safeguards introduced in 2007 was to register the LPA with the Office of the Public Guardian before it could be used, and although the OPG do have the right to investigate financial dealings, they do not do so unless it is brought to their attention that there may be a need to do so.
Melinda has dealt with more than one case where an LPA appointed a person who then financially exploited the elderly person. Fortunately, in each of the cases in which she has been involved, Melinda was able to investigate and then bring to account the perpetrator because she was the Executor of the Will and therefore after their death, her client’s abuser was convicted of Fraud by Abuse of Position. Where the same person is the Attorney and the Executor, this would have been almost impossible. In any event, it is seriously unpleasant to say the least, that a vulnerable elderly person is a victim of financial abuse during their lifetime, particularly by someone that they think they can trust.
What can you do? Our advice is do not make an LPA lightly. Seek solid detailed advice to thoroughly understand all the options and risks, and ask about possible safeguards.
In addition, if you suspect that an elderly person is being financially abused by their Attorney, then seek advice and report it.
In any situation involving Powers of Attorney, our solicitors at Giles Wilson can help you find the right solution. Melinda Giles is a Professional Deputy appointed by the Court of Protection, and works closely with our Private Client team to provide specialist advice. To arrange a consultation at our offices in Leigh-on-Sea and Rochford, you can reach us on 01702 477106, or email firstname.lastname@example.org