The importance of making a lasting power of attorney
While there has been much publicity around comments made by a retired senior judge in which he warns of a lack of safeguards in the Power of Attorney system, we would continue to advise people to make such a document as a means of protecting themselves in the event of a loss of capacity.
Denzil Lush, a senior figure in the Court of Protection for 20 years, has highlighted the potential risks of making a lasting power of attorney (LPA), saying that having deputies appointed by the Court itself is a better option and is subject to more scrutiny.
However, we would always recommend making an LPA – a legal document which allows a nominated person to make financial or welfare decisions on your behalf when you can no longer do so.
Through having an LPA, if you ever become mentally incapable of managing your financial affairs, or making health or welfare decisions, you will have someone already appointed and in place who can act on your behalf to make these important decisions for you.
Last year, almost 650,000 applications were made to register the document in England and Wales, and there are 2.5m currently registered.
While Mr Lush highlights situations where LPA-appointed attorneys can abuse their power, we would say this proves the need to appoint only someone you trust implicitly – spouses or/and children are a common choice, although a professional can be appointed in the absence of a trusted alternative. The document should also be reviewed to ensure the correct people continue to be appointed, and it can be revoked if necessary.
Although Mr Lush says the appointment of deputies by the Court of Protection is the option he would recommend, this is a time-taking process and comes at significant financial cost. Deputies may not be the people you would have chosen to act on your behalf, had you been able to make the decision yourself.
In our view, having an LPA in place, which is reviewed and updated when necessary, is a very powerful tool. Should you ever lose capacity to make your own decisions, you can be safe in the knowledge that you have nominated a trusted person to have the legal authority to act on your behalf.
Julie Garbutt is an Associate in the specialist Wills and Probate team at Newcastle law firm Sintons. To speak to her about this or any other matter, contact Julie on firstname.lastname@example.org or 0191 226 3131.