I have always advised my clients to make a power of attorney, as long as they can appoint someone suitable, who they trust. So last week when recently retired senior Judge Denzil Lush, former Master of the Court of Protection (and who from hereon I shall refer to as ‘DL’) took to the airwaves on the Radio 4 Today programme saying that he would never sign a power of attorney, that they are unsafe and he would rather be a case file in the Court of Protection, he rather put the cat amongst the pigeons!
Powers of attorney don’t often make the national news. There is the odd reported case where a vulnerable person has been financially abused by an attorney. Criminal cases involving criminal sanctions. I have encountered a handful of these cases during my career. They have been a tiny minority. But are these just the ones who get caught? Are there lots of untrustworthy and unaccountable attorneys operating below the radar and getting away with it? DL seems to think so.
Unlike many of my colleagues I wasn’t surprised when I heard DL on Radio 4. I’d listened to him say almost exactly the same thing at the Chester STEP Conference in June. Then I admit that I was taken aback. My initial reaction was ‘aren’t you happily married DL? Don’t you trust any of your family?’ I was even motivated to tweet in reaction. I could agree with DL about improving attorney safeguards, but I could not agree with his view that people were better off with the Court of Protection, not unless he foresees a radical improvement there following his retirement!
Powers of Attorney – Back to Basics (briefly!)
A Lasting Power of Attorney is a legal document by which you can appoint someone else (and more than one person) who you trust, to deal with your property and financial affairs, either as you want or need help in the future, and/or because you become mentally incapable. You can also separately appoint attorneys to help in relation to health and care decisions if you lack mental capacity in the future. Over the years the majority of my clients who have made Wills with me have also made a power of attorney. When I started work my clients were making Enduring Powers of Attorney, and for the last decade they have made Lasting Powers of Attorney. There is information about both types of power of attorney elsewhere on our website.
The Court of Protection
If people don’t make Lasting Powers of Attorney while they have mental capacity and they lose mental capacity, it becomes necessary for someone to make an application to the Court of Protection for the appointment of ‘a Deputy’. A Court appointed Deputy will act in a similar way to an attorney to deal with and manage property and financial affairs, but unlike an attorney the Deputy’s appointment is initially approved by the Court, and is (loosely) supervised on an ongoing basis through the submission of annual accounts to the Court. Deputy’s actions are also insured through a security bond system. Sounds fine, in fact sounds sensible. We help people for whom sadly these applications become necessary. But would we ‘sell it’ as the preferred option? Certainly not.
When the Court Can’t Help
It is important to understand that the Court of Protection only has jurisdiction and can therefore only make an order to appoint a Deputy if someone is incapable, by reason of mental impairment, of dealing with their own affairs. Many of my clients however rely on help and support from their attorneys even though they have mental capacity. They may suffer from some physical impairment – sight loss for example, which makes their own daily life difficult. The fact that they have someone they trust who has an official authority from them to help, makes their life very much easier. Sometimes people have just become disinterested, old or weary and they simply do not want to deal with their own affairs. Again a trusted attorney is a life saver. The Court of Protection can’t appoint a Deputy to act in these common place scenarios.
Blame Game and Recurring Theme
Lasting Powers of Attorney (LPAs) were introduced a decade ago following introduction of the Mental Capacity Act 2005 (MCA). A significant piece of legislation, a long time in the making, and designed to support and protect the vulnerable. DL had previously been critical of the lack of safeguards around the old Enduring Powers of Attorney (EPAs) which had been in circulation since 1986. His ‘feeling’ being that many EPA attorneys could and did easily abuse their positions.
The MCA was designed to put matters right and address these concerns. The power of attorney document went from being 3 pages (an EPA) to 26 (first generation LPA) – how safe can you get?! I’m rather sad that during a decade while DL has been in a position of significant authority, we haven’t produced something which is decisively better and safer for vulnerable people. Instead some of the statutory safeguards that the MCA initially introduced have been watered down. The unstoppable march of the digital age is a factor, but meantime the drive to make everything more accessible and lower cost (for the Government) has led to a reduction of individual protection. The legal profession has struggled to make its voice heard.
My Soap Box Moment
There are lawyers and then there are good lawyers, and then there are fully accredited members of Solicitors for the Elderly. Take good legal advice. Fewer and fewer people place any value on and are prepared to pay for expert advice. They will spend more a meal out than they think a Will should cost. The move away from talking to trusted professionals towards D-I-Y legal and ‘get it for free’ online has undoubtedly made more people more vulnerable to exploitation. I would not simply take instructions for a power of attorney without trying to get to know my client and understanding why they are appointing the people they are appointing. I want to make sure that they understand the responsibilities of the role of attorney and what is necessary to make the arrangement successful. I advise clients about options and important safeguards, so that the possibility of abuse in the future is far less likely. I would have advice to give someone with a UK daughter that they were close to, who was asking me to appoint their neighbour instead. My colleagues and I are able to do this because we understand the law and how it works in practice.
Most of our clients take our advice, however even we can’t convince everyone. The temptation of being able to access a form and fill it in yourself for free is appealing. Who needs to pay a lawyer? This is easy! Why does it take 6 years to train to be a solicitor?? What are these special accreditations for? The point is made elsewhere on our website, but no one knows what they don’t know. Powers of Attorney can be more significant legal documents than a Will. The perils of D-I-Y LPAs are made elsewhere in another news article on our website. But we are up against it. Successive Governments have not wanted to do anything to strengthen the position of the legal profession, in fact the reverse. It’s all about consumer choice, healthy competition from a variety of providers, fixed fees (smoke and mirrors) and….oh yes, somewhere further down the list, protecting vulnerable people.
Respect for DL. I Don’t Disagree With Everything he Said!
A system requiring acting attorneys to be insured (like a Court of Protection security bond) seems like a good idea. To get the insurance an attorney could be required to make a declaration (fitness to act and clarity of responsibility and obligations), similar to the one a Deputy is required to make. That shouldn’t require another decade of debate and a complete re-write of the legislation. A requirement for an acting attorney to prepare annual accounts to submit to third party audit is sensible. But this in my view is where any advantage of the Court of Protection ends.
Court of Protection applications are slow and expensive. The paperwork involved is repetitive and tedious. The first stage is to obtain a medical certificate from a doctor which forms part of the Court application and confirms that the person who is the subject of the application lacks mental capacity. This medical certificate can take a while to get. Some GPs legitimately refuse to provide them. The doctors who will provide them have virtual carte blanche in relation to their charge, as they do not form part of the NHS contract work. Some doctors will prepare the certificates free of charge, others charge £500 or something in between. Obtaining a Court Order can take anything between 4 and 6 months, plus. In the meantime everyone is in a difficult ‘limbo land’. The Court is remote, impersonal and inefficient. Last week my colleague phoned the Court of Protection to ask a question relating to a Deputyship application. It took 23 minutes for her call to be answered by a person who was then unable to answer the question.
Why Would a Respected Retired Judge Espouse a Radically Different View?
Well he has spent a significant part of his career in the Court of Protection dealing with problem cases, picking through the rotten apples. Some of those rotten apples have been Deputies appointed by the Court of Protection in the first place (DL would say that at least they were insured so the vulnerable person is protected). No system involving people can provide 100% guaranteed security.
It has been interesting to hear the debate arising from DL’s comment about Powers of Attorney versus Court of Protection. I have been prompted to think more about the advantages and disadvantages of the alternatives. Advice to my clients isn’t going to change – although it’s taking a little longer to deliver to those who listen to the Today Programme and heard DL! Don’t ‘do it yourself’ without the protection and benefit of sound legal advice.
AND FINALLY, Call me a Cynic but….
DL has just published a new book on this topic he’s got everyone talking about. Full credit to him for hitting the PR jackpot!!
We look forward to helping you with your Powers of Attorney or Court of Protection Applications.
The views expressed in this article are those of the author alone.