23 August 2017

Rogues will be Rogues

By Miranda Marshall, Director, Hayes + Storr

It is impossible to legislate for human nature. Financial and other abuse of the vulnerable, and even within families, has been ever-present. So what is so remarkable about retired Master of the Court of Protection Denzil Lush’s tirade about how he would never make a Lasting Power of Attorney (“LPA”)?

He spent his working life seeing the ‘car-crashes’ of the LPA system, but probably had little to do with the happy cases where a timely LPA is a life-saver. Like an A+E doctor saying paracetamol should be totally banned because he’d seen too many cases where an overdose had been taken, misuse of a system by the few shouldn’t remove its availability from the many.

It doesn’t take an LPA for financial abuse to take place. In these days of internet banking, funds can be accessed/transferred and mis-spent without a scrap of paper.

Better than an LPA should be in place with the availability of the safeguards of the Office of the Public Guardian that the only route being that of a full-on, expensive and very slow application to the Court of Protection for the appointment of a Deputy.

My own late grandfather’s informal carer ‘persuaded’ him, when he was at the point of losing mental capacity in his 90s, to write a cheque so her teenage son could buy a car. The Power of Attorney, by which he appointed me and my brothers, enabled us to have that £9,000 cheque canceled at the bank. Without it, he would have been defrauded.

The current system could, of course, always be improved. One way would be to require a professional person (medical or legal) to act in the role of Certificate Provider at the point when the LPA is made.

Contrasting the LPA with Mr Lush’s expressed preference for the Deputyship route shows why the LPA is best in most cases.  It can take 12 months for the Court of Protection to appoint a Deputy, during which time their finances are frozen, things can get into a real muddle and even the care fees cannot be paid. Sadly, often the person dies before the Deputy is appointed.

Having more than one attorney appointed by your LPA enables them to keep an eye on each other. It is possible to require your attorneys to produce annual accounts to show where the money is going. There can be a restriction so as to place a cap on the amount that a single attorney can withdraw. Ensuring proper thought is better than avoiding an LPA altogether, as this may compound the problem.

A report last year from Action on Elder Abuse warned on the importance of specialist legal advice. Look for a solicitor who is a member of Solicitors for the Elderly www.sfe.legal who will act as a safeguard against fraud and coercion.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead.  However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.

If you would like further advice on this matter please contact Miranda on 01328 710210. If you require advice on any other legal matter please call our Fakenham office on 01328 863231 or email law@hayes-storr.com.

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