Safeguarding Lasting Power of Attorneys following criticism from retired senior Judge

Last week, a retired senior judge warned that Power of Attorney documents are not safeguarding people’s finances adequately and has declared he will never sign one himself.  William Ware, Private Client Consultant, explains here how a Lasting Power of Attorney is still the most effective way of securing your wishes for the future if you lose capacity, but also gives some cautionary advice as to what steps you should take to ensure you are safeguarded.

Lasting Power of Attorney

There are two varieties of Lasting Power of Attorney; one for Health and Welfare, and the other for Finance and Property.  The legal documents allow a person to appoint attorneys who they trust to manage their affairs, should they not be able to do so themselves.  “Thousands of these documents are registered every year, with 2.5million currently registered,” begins William. “The retired senior judge involved, Denzil Lush, previously worked in the Court of Protection for 20 years and has voiced his concerns about the transparency and potential abuse of Power of Attorneys.” Sadly, the Judge has seen first hand on many occasions how things can go wrong.

Judge Lush draws on the example of Frank Willett, a Dunkirk and Normandy veteran, to support his objections.  Mr Willett made his neighbour, Colin Blake, his attorney through an Enduring Power of Attorney in 2003 when he was in his early 80’s and suffering from dementia.  As a consequence, Mr Blake had responsibility for Mr Willett’s financial affairs, and went on to withdraw nearly £9,000 from Mr Willett’s bank account, the first of numerous transactions, using the money to pay his own bills. 

“In this case, as Mr Blake was Mr Willett’s attorney, the bank processed the transaction and did not alert Mr Willett’s family,” explains William.  When Mr Willett moved into a care home in 2004, Mr Blake sold his house, which saw him receive £130,000.  It was only in 2008 when Mr Willett’s daughter managed to revoke the Power of Attorney with the Office of the Public Guardian that she discovered all of her father’s £60,000 had gone, as well as his medals from serving in the Army for 35 years, her mother’s wedding ring and other jewellery.   

“Mr Blake has now been sentenced to four and a half years in jail for theft, but for the family this is obviously a devastating example of how an Enduring Power of Attorney could be abused,” explains William.  “Enduring Power of Attorney’s can no longer be created due to issues such as this, and Lasting Power of Attorney’s now attempt to ensure that more stringent measures are taken. But without the benefit of a solicitor being instructed as Certificate Provider, there is still a risk of abuse.

By engaging a solicitor to prepare a Lasting Power of Attorney, you will not only benefit from their expert advice and knowledge to guide you on the right options, but solicitors, in their capacity as Certificate Providers, will undertake rigorous capacity checks, and if the attorney is not a member of the family, we will advise the Donor to notify their family to avoid complications envisaged by Judge Lush.”

William goes on further to observe, “The appointment of an attorney is an extraordinary act of trust. There has to be trust not only in the sense of honesty and integrity of the appointed attorney – but also in terms of judgement and financial skills. By involving a solicitor in the preparation of the Lasting Power of Attorney, the Donor of the Power has a built in sense check as to whether they are making appropriate choices.”

William concludes, “We all accept that Lasting Power of Attorney documents do carry some risks, however by taking the right steps they remain an excellent way to protect your family and give you the peace of mind that your affairs will be in order in a cost effective way if you do lose capacity.  Done in the correct way, there is no other document that can bring the same results.”

If you have any questions or are considering setting up a Lasting Power of Attorney, you can contact William or the Private Client team on 01329 222075 or email privateclientenquiries@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.

substiture for, and should not be interpreted as, legal advice.