Lasting power of attorney: what are the options?

Some people make a lasting power of attorney (LPA) as a way of planning ahead for when they may not have the mental capacity to make their own decisions. An LPA enables the donor (person making the LPA) to choose who should make their decisions and the type of decisions the attorney(s) can make, and is relatively inexpensive to set up. Alternatively, if there’s no LPA, the Court of Protection can to appoint deputies to make those decisions. This can be a more time consuming and expensive process, and leaves the choice of decision maker to the Court.

Denzil Lush, former senior judge of the Court of Protection, believes it’s worth paying the extra fees for having a deputy since deputies are subject to a much greater level of scrutiny than attorneys. He was also reported as saying that he would never sign an LPA himself.

Decision makers

There are two types of power or attorney and deputy. It’s possible to have one or both, for decisions concerning:

  • Property and Financial Affairs; and/or
  • Health and Welfare.
Donor’s choice of attorney

The donor chooses who to appoint as attorney. It’s important that they choose someone they feel able to trust.

It’s possible to appoint a professional (such as a solicitor), but many people choose family members or friends.

The donor may appoint one or more attorneys, and may impose restrictions on the type of decisions they can make.

Choice of deputy: the Court’s decision

Anyone can apply to be a deputy but the Court of Protection decides who to appoint. Deputies are usually close relatives or friends of the person who needs help making decisions. Sometimes the Court appoints a professional or a specialist from an approved list.

Safeguards and scrutiny

Safeguards built into the process of making an LPA:

  • the donor’s signature must be witnessed
  • the LPA must be signed by a “Certificate Provider” who confirms that the donor understands the purpose and scope of the LPA, that no fraud or undue pressure is involved, and that there is no other cause for concern
  • the LPA must be registered with the Office of the Public Guardian (OPG) before it can be used

A certificate provider may be someone who has known the donor for at least two years, or someone who is able to form a professional judgment about the donor’s understanding, such as the donor’s GP, a healthcare professional or a solicitor.

The donor can (but does not have to) choose up to five people to notify about an application to register the LPA – any concerns can be raised at that stage.

It’s not necessary to use a lawyer to make an LPA, but many people do.

Supervision of deputies by OPG

The OPG supervises deputies and may contact or visit them. Deputies must also write an annual report.

Fees

The fee for applying to register each LPA is £82.  It is possible to apply to pay less.

For deputies the fees are higher:

  • application fee of £400 for each type
  • fee of £500 if the court decides the case needs a hearing
  • annual supervision fee of £320 unless the deputy is managing less than £21,000, when there is a reduced fee of £35 for minimal supervision
  • new deputies must pay a £100 assessment fee

It’s sometimes possible to apply for an exemption or reduction of fees.

Security bond

Property and affairs deputies, but not attorneys, must pay a security bond – a type of insurance that protects the finances of the person without mental capacity.

Government promotion of LPAs

In February 2015, the Government launched a public awareness campaign “Choice not Chance” to encourage people to plan for the future, including by making an LPA.

“Best interests” decisions

Any decision-maker must act in the best interests of the person without mental capacity. Attorneys and deputies must also have regard to a Code of Practice. The OPG can investigate concerns about attorneys and deputies. The Court can revoke an LPA or replace a deputy, and criminal proceedings might sometimes follow.

LPA v appointment of deputy – which to go for?

Denzil Lush – appointment of deputy worth the fee

Denzil Lush adjudicated in 6,000 power of attorney cases, where most abusers were relatives. He has warned that a power of attorney can have a “devastating” effect on family relationships and that the “lack of transparency causes suspicions and concerns which tend to rise in a crescendo and eventually explode”.  Denzil Lush warned of the lack of safeguards in the power of attorney system and said that the Ministry of Justice was “disingenuous” in promoting the system.

Denzil Lush pointed to the greater scrutiny of deputies and the requirement for deputies to have a security bond, adding that it was worth the cost of £320 a year to have the safeguards.

Ministry of Justice – safeguarding vulnerable people is priority

The Ministry of Justice said: “We take swift action if any abuse is reported and have a zero tolerance approach to any attorney or deputy who breaks the law.”

Law Society – take legal advice on what is best in circumstances

Joe Egan, president of the Law Society, said: ‘While the risk of exploitation in these difficult circumstances can never be entirely eliminated, a solicitor can help prevent abuse, reduce the risk of trouble, and ensure those who need them can get these important documents in place to ensure someone is there to look after their affairs when they are no longer able to look after themselves.’

A Commons Library briefing paper provides further information, Powers of attorney and other decision-making powers.

Picture credit: Cursive, by A Birkan Caghan in August 2015. Creative Commons Attribution 2.0 Generic (CC BY 2.0)