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Lasting Powers of Attorney - Friend or Foe?

View profile for Sarah Finnigan
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Lasting Powers of Attorney (LPAs) are a hot topic, often sparking debate. There is no doubt that more people than ever are aware of them and this firm has certainly seen an increase in the number of clients making them. Yet there is still conflicting opinion about the merits of making LPAs, something which was highlighted last month when retired Senior Judge, Denzil Lush, commented that, in his opinion, they are risky and that he himself would not sign one.

LPAs are legal documents which allow you to appoint people you trust to make decisions on your behalf, should you ever become mentally incapable in the future. There are 2 types of LPA; one for financial decisions and one for decisions about your health and welfare.

The procedure for making LPAs is relatively straightforward and anybody can make them, provided they have the requisite level of capacity to do so. If you were to lose capacity without having made LPAs, there would be nobody with legal authority to help you, and often this would result in a situation where an application has to be made to the Court of Protection (a specialist Court based in London which make decisions for those who lack capacity) so that somebody can be appointed to manage your affairs.

Denzil Lush was a Senior Judge in the Court of protection for 20 years before his retirement and his comments reflect his view that the LPA process lacks safeguards to protect the people making them. Specifically, he seems to suggest that making LPAs carries with it the risk of financial abuse and breakdown in family relationships, and that the Court of Protection route offers a greater level of protection for the person who lacks capacity. This is because the Court application process is more rigorous, the applicants are more heavily scrutinised and a greater level of information needs to be provided before the Court will determine whether a person is suitable to manage the affairs of the incapable person.

"This is certainly a topic worthy of commentary and there are arguments for both sides” says Sarah Finnigan, a Solicitor within Pearson’s Private Client team. “Sadly cases will arise where there is the potential for conflict or wrong doing, but one would hope that these remain the exception.

The fundamental benefits of the LPA process are that it affords clients the freedom to choose who should represent their interests in the event that they lose capacity and it also saves time and costs - as it cannot be ignored that the Court process is significantly more expensive, onerous and time consuming.

Making LPAs can therefore be a positive and effective way of implementing your wishes. It is also worth highlighting the fact that nobody is obliged to make LPAs and people can of course rely on the potential involvement of the Court of Protection if they wish. But to reach the conclusion that LPAs should automatically be avoided ‘just in case’ a problem arises is not, in my opinion, logical. Instead, you should take professional advice on the subject from a suitably qualified solicitor, so that they can then decide whether LPAs are suitable".

 

For more information, please contact our specialist Private Client team on 0161 785 3500 or email us at enquiries@pearsonlegal.co.uk.

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers LLP or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.