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Lasting Powers of Attorney – consistently invaluable in responsible hands

07th September 2017

Lasting Powers of Attorney (LPAs) were recently criticised by a retired senior judge who, in the foreword to his new book, warned he would never sign a LPA because of his concerns that the system leaves donors vulnerable to abuse by unscrupulous attorneys. But is this a fair assessment?

LPAs are legal documents through which you, the donor, can choose whomever you wish to act as your attorney and thereby grant them power to act on your behalf in health and social care matters or in your financial affairs. The potential exploitation of that power by criminally-minded attorneys is of course an aspect to be considered, but safeguards are in place aimed at stopping abuse once it is detected and at preventing abuse in the first place.

Creating a power of attorney requires the donor’s full knowledge and signed approval. The donor’s mental capacity must be confirmed by a doctor, a lawyer, or someone who has known the donor for at least two years, and the donor’s LPA signature is countersigned by a responsible witness.

The system allows a donor to appoint one or more trusted attorneys – requiring joint attorneys to act together reduces the potential for criminal behaviour. It is also possible for LPAs to include a donor’s specific instructions; donors can also request friends or family members are notified when the LPA is registered.

And if in the context of the LPA an attorney is suspected of wrongdoing their actions can be investigated by the Office of the Public Guardian under the Mental Capacity Act 2005. If necessary a court representative will meet the parties and may decide the LPA should be cancelled by the court to protect the donor’s best interests.

Admittedly the system is not completely foolproof. Nonetheless it is concerning that a retired senior judge who, because of his former role in the Court of Protection has more often seen the negative impacts of a small minority of misused powers rather than the positive impact of the vast majority of well-used powers, should choose to express publicly such a pejorative view of a system that has proved so crucial for many responsible families caring for loved ones in the last phase of their lives.

If you would like to discuss whether a lasting power of attorney is right for you, or you have concerns about an existing LPA, our experienced solicitors are on your side. For more information call our Chichester team on 01243 786668.

Ursula Watt. Partner & Head of private client

 

General, George Ide, News, Wills and Probate
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