Lasting Power of Attorney and Court of Protection Deputyship- why use a lawyer?
Investigations into the actions of deputies and attorneys appointed under Lasting Power of Attorney (LPA) arrangements have soared in the last year by some 45%.
Figures from the Office of the Public Guardian (OPG), the government body that supervises the financial affairs of people who lack the necessary mental capacity for making decisions, have revealed that there were 1729 investigations in the 2017/18 tax year – a steep rise from 1199 in the previous year.
This significant increase has prompted the organisation Solicitors for the Elderly (SFE), a specialist group of lawyers who support older and vulnerable people, to advise that a lawyer should be included in LPA procedures.
The SFE argue that the growth in the number of ‘DIY and online submissions’ for LPAs is leaving people at risk if their attorneys make mistakes or, in the worst cases, abuse their position.
LPAs allow you to give another person (the attorney) the legal authority to look after specific aspects of your finances or your health and welfare with that power continuing should capacity be lost. It is therefore an important role that carries with it an enormous amount of responsibility.
If a person has already lost capacity to manage their affairs and doesn’t have an appropriate power of attorney, an application will need to be made for the appointment of a deputy to represent them and make decisions on their behalf.
If attorneys and deputies carry out their legal duties and responsibilities effectively and the process runs smoothly, they perform a vital role in protecting the interests of the person they represent. However, the system is not infallible and sadly, can be open to abuse.
Unfortunately, there have been cases where attorneys and deputies have abused their powers, some unwittingly, but others quite deliberately stealing money from the person they are acting for. Others have failed to keep within the scope of the powers granted to them or neglected to keep accurate, up-to-date records. This is all too evident given the sheer volume of investigations into attorneys’ and deputy’s’ actions that have taken place.
People’s affairs can be complex and family relationships can sometimes be difficult leading to disputes when it comes to making important financial and property decisions.
That is why appointing a professional attorney or deputy, such as a lawyer, can reap huge benefits. They are able to remain independent and impartial. Their activities are regulated by a number of professional bodies.
A lawyer will fully understand the legal duties and responsibilities that are involved and the fact that as an appointed attorney or deputy, they are legally liable. Bound by the Mental Capacity Act 2005 and its Code of Practice, a lawyer has a duty to act in your best interests at all times.
Furthermore, a lawyer can help by making sure you fully understand the implications of the LPA you are drawing up or your role as an attorney or deputy, ensuring you are informed of any other steps you need to take to protect yourself. This might include advice about making or updating your Will or the Will of the person you are representing or providing useful, up-to-date advice on benefit entitlement.
If you’re considering putting an LPA in place, a lawyer can help with the whole process – from advising you on the ins and outs of LPAs to filling out the documentation and applying to register it with the Office of the Public Guardian (OPG). If you are acting as a deputy or contemplating taking on that responsibility, a lawyer can advise you on all aspects of the role and the steps to be taken.
While it is quite feasible to put LPAs in place yourself or apply to the Court of Protection to be appointed as a deputy, without any specialist legal input, there is a danger that any mistakes you make or errors of judgment, could make things difficult for your attorney or for you in the future. It is also important that you fully understand the responsibilities of acting as an attorney or deputy if someone has asked you to fulfil that role.
If there are added complexities such as: overseas property, business interests, investments or family divisions, expert legal advice can be extremely valuable and rule out spending thousands of pounds further down the line to rectify costly mistakes. Importantly, it will also help to safeguard against financial abuse.
Ruth Pyatt, director of the SFE, says: “Involving a solicitor in the process of creating and registering an LPA ensures that the donor’s best interests have been accounted for. It also ensures that a donor has considered all options and if necessary, put in protection clauses in the LPA.”
On a more practical note, your lawyer can securely store your LPA and safely hold on to it until it may be required.
At Hyphen Law, we are experts in all aspects of work overseen by the OPG and the Court of Protection, the court that deals with decisions or actions made under the Mental Capacity Act.
We work closely with families and professionals to deliver the very best service for our clients.
Our approach is to be upfront about the costs involved and to always discuss matters in an open, honest, transparent way. We will always work alongside your family members to ensure that whatever the situation, your wishes and your best interests are at the heart of everything we do.
To learn more or to make an appointment to discuss making an LPA or any aspects of Deputyship, call us on: 0845 160 1111 or email: firstname.lastname@example.org.