This of course goes against the advice that everyone should have a Lasting Power of Attorney but we feel, in light of these comments, it is important to reiterate the safeguards that are in place.
• A Lasting Power of Attorney cannot be used until it has been registered with the Office of the Public Guardian. While financial LPA's can be used as soon as they are registered, it is possible to restrict this to when the donor, the person making the LPA, lacks mental capacity. Health and Welfare LPA's can ONLY be used when the donor lacks capacity
• When making a LPA, a certificate provider is required. This is an independent third party who confirms the donor is fully aware of the effect of an LPA and that they are not being pressurised into making one. Note, the certificate provider should meet with the donor alone
• All attorneys are required to follow the principles of the Mental Capacity Act 2005 meaning they should at all times act in the best interests of the donor. If they do not, their power can be removed
• Concerns about attorneys can be raised with the Office of the Public Guardian at any time and they will investigate
Mr Lush believes there are stronger safeguards when someone is appointed a deputy through the Court of Protection. While this may be the case, for example, a deputy needs to take out a security bond (insurance) and they are supervised on an annual basis by the court (which they charge for), the process is far more expensive and demanding. Also, there is no control over who manages the finances of the person who lacks capacity. This could mean that a Social Services department could manage finances and property rather than a close family member or trusted friend.
When it comes to Health and Welfare, the Court of Protection rarely lets a deputy have authority to make all decisions, preferring to make decisions on specific issues. With an LPA, the donor can stipulate what decisions their attorney can make so no further authority is usually required.
There are pros and cons of both Court Deputyship and LPA but provided a person is fully aware of both options, an LPA is usually the preferred choice.
It is important to plan early as people can lose mental capacity at any time, be it through illness or accident.
If you have any questions, please get in touch and we will be happy to discuss the above in more detail.