Are Lasting Powers of Attorney Too Risky?
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Date Published:29 Aug 2017 Last Updated:23 Jul 2021

Are Lasting Powers of Attorney Too Risky?

Wills, Trusts & Probate

Lasting Power of Attorney (LPA):

A document by which you can choose a trusted person (or people) to act on your behalf as your Attorney. Once registered at the Office of the Public Guardian (OPG) they have legal authority.

Deputyship:

The Court of Protection (COP) can make a Deputyship Order to appoint a Deputy to act on your behalf. These Orders are typically made when a person no longer has the mental capacity to choose an Attorney but needs someone to assist them.

Both Attorneys and Deputies are required to act in accordance with the principles of the Mental Capacity Act 2005 and their authority is limited to acting in the donor’s best interests only.

Judge’s Comments

Retired Senior Judge Lush recently criticised LPAs. He told BBC Radio 4 that he felt there was a lack of safeguards and little oversight of Attorney’s activities. He argued this can lead to misuse of legal authority. He explained that having a Deputy appointed instead is much safer.

It is true that Deputies are better supervised than Attorneys. They are overseen by the Court of Protection which requires them to provide annual financial accounts. They also have to obtain a surety bond to insure against their potential wrongdoing. However people are often put off by Deputyships for two reasons:

  1. They are much more expensive than LPAs to make. There are also ongoing Court fees.
  2. The oversight by the COP can be perceived as unnecessary bureaucracy.

The majority of people choose to appoint their spouse, long-term partner, children, nieces and nephews or siblings as attorneys. People they trust.

If you don’t trust the person to act in your best interests, or if you only wish them to be appointed if they are supervised, then you should question whether they are a good choice.

If someone suspects your Attorney (or team of Attorneys) to be misusing their authority; they can report them to the OPG for
investigation. Serious matters are referred to the police.

If you are unsure whom to appoint, consider a professional Attorney or Deputy. Solicitors have to comply with a Code of
Conduct. We are also independent in that (unlike friends or family members) we are not expecting gifts or an inheritance from you. Lush referred to this option but noted that people can be dissuaded by professional Deputies’ fees.

A further important point is that it is extremely rare to have a Deputy appointed for Health & Care decisions. However anyone with capacity can appoint an Attorney in this regard. It is important to have someone appointed in case you are in an accident or become extremely unwell. You may need someone to liaise with your doctors or carers and they may be reluctant to do so without proper authority.

For the majority of people LPAs are sufficient and extremely useful. Whilst LPAs are potentially open to misuse, and shouldn’t be entered into without careful consideration, it is usually better to have someone you trust appointed to act for you rather than no-one at all.

If you have any queries in regards to Lasting Power of Attorney, please don’t hesitate to give us a call on 01202 057800, send an email enquiry or visit our Power of Attorney dedicated site