Denzil Lush was until recently the most senior judge in the UK Court of Protection. He said he would never sign a Lasting Power of Attorney (LPA) himself, despite there being 2.5m agreements in place in England and Wales.
By Amy Lloyd
An LPA enables an individual to choose who can make decisions on their behalf, if in future they lack the mental capacity to make them for themselves. Lush believes the system lacks the necessary safeguards, putting vulnerable people and their assets at risk.
I believe the risks are overstated and that the adverse publicity surrounding these comments could put even more people at risk if they choose not to make an LPA.
Mental Capacity Act imposes accountability
An attorney’s responsibilities are detailed in the Mental Capacity Act which is underpinned by five principles designed to provide the necessary safeguards. Anyone can report an attorney they suspect of abusing their position, to the safeguarding unit at the Office of the Public Guardian.
Lush appears to favour Deputyship Orders, but these have drawbacks beyond just the cost. They require a full list of assets, which an individual may not want to disclose, particularly if they have fluctuating mental health issues, rather than deteriorating health.
Without an LPA, if you suddenly became incapable of managing your finances, even a trusted relative or friend would struggle to help – your bank will not deal with anyone other than the account holder, for example.
Deputyship Orders include:
1. Providing a full list of your assets to the Court.
2. A security bond required to cover financial losses if they fail to carry out the Court’s directions.
3. A requirement to provide annual accounts to the Court.
Whilst all of that sounds good, you will bear the additional costs.
Adding clauses to an LPA for peace of mind
An LPA ensures that your affairs are managed by someone you choose, rather than the Court of Protection. With the help of a solicitor, you can add clauses to the standard LPA form to help avoid potential abuse, such as insisting your attorney provides annual accounts to three named family members and your accountant.
Is this better than providing annual accounts to the Court? Perhaps, since the family members or accountant could report any concerns.
Including such a condition in your LPA would answer Lush’s concerns that LPAs “lack of transparency, causes suspicions and concerns which tend to rise in a crescendo and eventually explode”. You could even appoint a number of attorneys to monitor each other, but it opens your finances to greater scrutiny which you may not welcome.
Whilst retired Judge Denzil Lush’s statement endorses Court Deputyship Orders, if you want to retain some control beyond incapacity, the LPA is still the right choice when combined with some carefully worded conditions.
Amy Lloyd is a solicitor with law firm, Wright Hassall.