A Lasting Power of Attorney (LPA) is a legal document that allows you to choose the people you want to make decisions on your behalf when you lack the mental capacity to make those decisions yourself. There are two types of Lasting Power of Attorney, one to cover financial affairs and one for health and welfare. LPAs are therefore potentially very valuable documents so why would an ex-judge not sign?
The reasoning behind Mr Lush’s view was that a Deputy appointed by the Court of Protection would be a far safer option as it provided some built-in safeguards which an LPA did not, especially when it came to protecting against financial abuse. Indeed if you lose mental capacity and have no attorney under an LPA, a Deputy appointed by the Court of Protection to act on your behalf must meet the following conditions:
- A lengthy application process requiring approval by the Court
- The production of a detailed annual account to the Court
- The taking out of a ‘surety bond’ that indemnifies your estate against abuse
- Periodic reviews by court-appointed Visitors.
Different solutions for different situations
As a former judge Mr Lush was concerned about the lack of similar safeguards offered by the LPA process.
As a firm of solicitors, we help clients with both LPAs and Court of Protection representation, so we have no specific axe to grind on this subject and in the interest of balance it is important to point out that a comparison between the two is not particularly appropriate.
- Firstly there is the absolutely critical issue of timing. The process to appoint a Deputy through the Court of Protection can only start at the point mental capacity to make decisions has been lost and family and carers have therefore already reached a very difficult situation where there is no other option open. By having an LPA in place you are seeking to avoid reaching that position as it is completed in advance of the loss of capacity.
- The Court of Protection process is exhaustive and can easily take six months during which time there may be a complete impasse in managing financial affairs as assets can be frozen. The costs of going through the process are normally counted in thousands of pounds whereas an LPA is likely to be completed in six to eight weeks and the cost limited to a few hundreds of pounds.
- Choice is also important. Not all loved ones make good attorneys, and that is an important consideration. However you are able to appoint more than one attorney (up to four) and that in itself offers a degree of security around decision-making. You can appoint them to act individually or as a group. The appointments will also be your choice and you can choose different attorneys depending on whether an LPA covers health and welfare or financial matters. Of course your attorneys should be trustworthy and have the appropriate skills to make financial or medical decisions. The Court of Protection only provides one Deputy to cover all aspects and that person may not necessarily be who you might have chosen yourself.
- If you are particularly worried about choosing the right attorneys because substantial assets may be at stake it is possible to appoint a solicitor as an attorney or ask for an annual audit to be completed when you complete your LPA.
At Wellers we believe in the value of LPAs to protect loved ones from the complications and distress that can result from loss of mental capability. This change can often happen very suddenly and we believe it is better to be prepared.
Whether you wish to plan ahead and have an LPA prepared or if you now find yourself in a position of applying for a Deputyship on behalf of a relative, we can help. Call our Private Client team on 020 8464 4242 for our Bromley office or 01483 284567 for our Surrey office or email enquiries@wellerslawgroup.com
This article has been prepared in order to provide general guidance to clients and should not be treated as legal advice. We recommend you contact a solicitor who will be able to take your specific circumstances into account when advising you.