Denzil Lush, retired senior judge of the Court of Protection, has today spoken out regarding the lack of safeguards in the power of attorney system in England and Wales and has vowed to never sign one himself.
Sophie Fenn, Associate Solicitor at our Solihull office examines Mr Lush’s comments and offers her expert opinion on how to safeguard vulnerable individuals from financial abuse.
A power of attorney, either “enduring” if made prior to October 2007, or “lasting” if made more recently, enables attorneys to act on behalf of the donor, most commonly in relation to financial decisions.
Appointing an attorney is a decision based on trust and only if alerted to financial abuse will the office of the public guardian, part of the ministry of justice, get involved with the attorney’s decision making.
The alternative, which the judge said was his personal preference, is the appointment of a deputy, by the court of Protection, to make financial decisions for someone who has already lost capacity. The identity of the deputy is therefore a decision for the court, not the individual.
A deputy is supervised on an ongoing basis and has to submit annual accounts and put in place an insurance bond, to protect the individual’s assets.
Sadly there are cases of financial abuse facilitated by a lasting power of attorney. However compared to the 2.5 million registered powers of attorney in existence, the reported cases are relatively small in number but there are no doubt many more out there that don’t come to light meaning elderly and vulnerable adults are being financially abused with potentially no hope of redress.
For most people, however, a lasting power of attorney is an important planning document, which enables finances to be managed without delay or disruption in the event on incapacity.
Appointing a professional attorney where the attorney is familiar with the relevant requirements and has to adhere to their own professional standards may be an appropriate option for some.
Our team of specialist solicitors regularly act as professional attorneys and deputies, which is another alternative, enabling decisions to be made with independence and scrutiny by a trusted legal professional.