24th August 2017
Comment on Judge Lush’s warning about Lasting Powers of Attorney
Former Judge Denzil Lush has said he would never sign a Lasting Power of Attorney because of the risk of abuse and the devastating effects on family relationships.
This has also been linked with a financial abuse case under the former Enduring Power of Attorney regime. It is certainly true that there has been a vigorous campaign to promote Lasting Powers of Attorney rather than the system of Deputyship, which is the Court of Protection alternative. Former Judge Lush is correct in that Deputies do have a far greater degree of Court oversight upon them than Attorneys under either the Enduring Power of Attorney or Lasting Power of Attorney regimes.
That does not mean, however, that lay Deputies have not, in the past, misused their powers and there are a number of cases where that was clearly the case. It is also perhaps inappropriate to castigate the very many lay Attorneys acting under Lasting Powers of Attorney who do a perfectly proper job. What is however quite clear, is that Lasting Powers of Attorney should not be entered into lightly and the very ease in which they can be drafted now, does lull people into the sense that they can deal with them themselves without advice and thought. Putting it in the simplest possible terms, when using a professional such as a solicitor who has extensive experience of this field of law and an understanding of the mistakes which can happen, one is paying for the experience and the advice and not merely the form filling.
Sometimes, it can be appropriate for a solicitor to be appointed as an Attorney. Those cases will increasingly become few and far between, but a solicitor may be appropriate if there is a history of family difficulties, if there is a history of financial abuse, if the person involved has a very complex set of assets and liabilities or if they have no one else who can reasonably act. What is clearly the case, we believe, is that a well-considered and thought-through Lasting Power of Attorney for property and financial affairs preserves autonomy, is significantly cheaper and allows the Donor to have the final decision as to who acts or does not act. One of the issues missed by Judge Lush is that frequently, the Donor under a Court of Protection Deputyship matter, will have no knowledge of or experience with the Court-appointed Deputy who may well not be a family member.
For further information on this or any other private client law matters, please contact Lucy Head, Solicitor or Edward Walter, Partner and Solicitor at Buss Murton Law LLP on T: 01892 510 222 or email firstname.lastname@example.org or email@example.com.