There has been much comment and debate recently about the risks of Lasting Powers of Attorney and the opportunity they might present for misuse.
An LPA is a document that appoints one or more people to act as your attorney in making decisions on your behalf when you lack the mental capacity to do so yourself. It can relate either to property and financial affairs or to health and welfare. Both obviously place great trust and responsibility on the attorneys but the recent debate has been around the misuse of financial LPAs.
There are safeguards to ensure that the donor (the person making the LPA) understands what the LPA is and that they are acting of their own free will. It is possible to specify that the LPA can only be used when the donor loses mental capacity and also to appoint more than one deputy who must make decisions together. What is workable in practice will very much depend on individual circumstances. However, the concern is that there is no system of supervision once an LPA is put into use and that this misuse might go undetected when the donor has lost mental capacity. This issue was highlighted recently by the retiring Court of Protection Judge Denzil Lush who spoke about the cases of misuse of powers of attorney and the misappropriation of property and funds that he has come across in his role as the Senior Court of Protection Judge. This has led to calls in Parliament this week for a specific criminal offence of financial abuse of trust.
Our Litigation team has acted for concerned relatives in the investigation and recovery of funds misappropriated by attorneys. It is a very sensitive and distressing issue but often only comes to light after the donor has died and when funds or property are found to be missing from the estate.
It is therefore important that you consider all of the options around making a Lasting Power of Attorney and whether the alternative of a supervised Court of Protection Deputy might be more appropriate. Our Wills Trust & Probate team are all experienced in those choices and can help you to make the right decision.
If you are concerned about the use of an existing LPA, please contact John French who is a solicitor in our Litigation Department who has acted in cases of misuse recently.