Denzil Lush, a retired Senior Judge of the Court of Protection has recently criticised powers of attorney, as detailed in this BBC Radio 4 Today programme article.

A Lasting Power of attorney (“LPA”) for Financial Affairs must by its very nature give an attorney control over a donor’s financial assets. There is no way around this so it is clearly a two-edged sword: an unscrupulous attorney could potentially misuse their position of power if proper safeguards are not in place. That said, we believe this is the exception rather than the rule and that the vast majority of LPAs work well.

Mr Lush suggests a deputy as an alternative to an attorney and points out that deputyships have additional safeguards compared with powers of attorney. While this may be true, applying for deputyship is a slow, expensive and labour-intensive process. Once appointed, a deputy is required to submit an annual report to the Office of the Public Guardian.

Although Lasting Powers of Attorney are cheaper than deputyships and quicker to arrange, it is still possible to put safeguards in place. This can include appointing more than one attorney, retaining control as long as possible and notifying one or more third parties. They can voice any objections to the Office of the Public Guardian who will then consider whether it would be appropriate to appoint the attorney(s).

The advantages of LPAs cannot be underestimated for those lacking physical mobility or mental capacity. In these situations LPAs can be a lifesaver by giving attorneys (often loving and honest members of the donor’s own family) legal authority to communicate with official organisations on the donor’s behalf. The attorneys typically know the donor personally and are often better placed to know the donor’s needs or wishes than third-party professionals, however well-meaning.

At Lupton Fawcett, we can give you professional advice about making Lasting Powers of Attorney, both for Property & Financial Affairs and for Health & Welfare. Whether you should make one or both types depends very much on your own individual circumstances.

If you would like to discuss LPAs further then please contact Hugh Thompson or get in touch with a member of the Private Client Team.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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