Anyone hearing Denzil Lush, a former judge of the Court of Protection, on the Today programme today would feel justified in wondering whether they had done the right thing in giving a family member (or a friend or a professional) a Lasting Power of Attorney (LPA). He painted a picture of widespread abuse of these powers and said that, if he ever lost mental capacity, he would prefer to have a deputy appointed by the Court of Protection (the Court of which he was the leading judge for decades) rather than an LPA.
There are some relatively unusual situations where we would indeed recommend having a deputy appointed by the Court of Protection instead of making an LPA. This often involves cases where it is clear from the family dynamic that members of the family would find it hard either to cooperate as attorneys or to accept a situation where some family members were attorneys and others were not. Other factual situations can make this the preferred route too.
Realistically however, these cases are the exception rather than the rule. For many, the cost of applying to the Court for a deputy to be appointed, and then the greater running costs, are a significant – or even insurmountable – barrier. There is also the inevitable delay caused by the application to the Court before the deputy can act – six months is not unusual. It would be a great pity if these comments encouraged the less well off away from LPAs and into much more vulnerable routes, such as putting assets into their child’s name.
Denzil Lush’s perspective may reflect the fact that LPAs only come before a judge when things have gone wrong. With the vast majority of LPAs there is no abuse. So it is a concern that the reporting in the media of these comments may deter people from using the lower cost, more accessible, alternative of an LPA. LPAs aren’t perfect but, provided legal advice is taken when they are made, they are far and away the best option available for most family circumstances.
Problems undoubtedly do exist with a small minority of LPAs being abused. These problems need to be addressed by improving the provisions that govern how LPAs can be operated, not by throwing the baby out with the bathwater. The LPA structure was created without the built-in mechanism for accountability and supervision of attorneys that it needs, and if the result of Denzil Lush’s comments is to encourage a reassessment of this then that would be a positive outcome. But given that powers of attorney have to be available to the less well off as well as the better off, any system would need to be simple and inexpensive, or at least proportionate to the assets involved.
NOT JUST FINANCES
It is easy to think of LPAs as all about money and assets, but it is important to distinguish between LPAs for financial affairs and LPAs for health and welfare decisions. Although it is technically possible to get a deputy appointed for health and welfare decisions, in practice the Court will almost never do so. It would be a pity if these comments put people off creating health and welfare LPAs (which the medical professions are in general these days well geared up to working with as part of integrated patient care). Whether or not to create a health and welfare LPA is an extremely important decision that requires great care, and should be taken in a context that also includes the possibility of making an Advance Decision instead (or as well): if an individual takes no action at all, they can be left with the medical advisers, not their chosen family members of friends, taking the decisions for them with possibly no knowledge of their wishes and preferences.