In Safe Hands

Why it’s important to plan with a Lasting Power of Attorney and not rely on the Court of Protection

Katherine Carroll, solicitor and author of this piece

Without a Lasting Power of Attorney (LPA), if you lose mental capacity to deal with your own financial affairs your family have to apply to the Court of Protection to be given authority over your finances (‘a Deputyship’). The process is as follows:

  • You have to be assessed medically to confirm you no longer have capacity (often a fee is charged by your doctor);
  • Your family have to provide detailed information about your assets, liabilities, income and expenditure;
  • You have no control over the choice of who helps you – the court will decide;
  • The process can take 6 months or more; and
  • The costs involve a £400 court fee as well as potentially solicitor costs, which can run into thousands of pounds.

To plan in advance and put in place an LPA, the process is as follows:

  • You decide when to put one in place;
  • You decide who your attorneys should be – so who will help you manage your affairs;
  • You can put in place both a Property & Finance LPA as well as a separate Health & Welfare LPA;
  • The process takes around 8-12 weeks; and
  • The costs involve a £82 court fee and if you use a solicitor then this is usually a fixed fee.

In August, Denzil Lush, a retired judge in the Court of Protection, said on R4’s Today programme that LPAs put people at risk of exploitation by their chosen attorneys. Is this the case?

Actually, I think that we have a much more comprehensive system in place with many more safeguards. Every LPA is registered by the Office of the Public Guardian who then oversee all LPAs and have powers to investigate where wrongdoing is suspected. This is very reassuring.

Whilst it is true that the Office of the Public Guardian are investigating more suspected wrongdoing by attorneys, this is actually something that I can only see as a positive thing, showing the overall framework of protection that is in place. Alan Eccles, the Public Guardian responded to Denzil Lush’s comments by stating that only a tiny number of cases are investigated. To date there are now over 2.4 million LPAs registered.

It is important that you choose your attorney carefully but my view is that by putting in place an LPA, you are choosing who will help you and planning how that help will be effected. Whilst you can do an LPA yourself this is unwise – although it is essentially a form to complete, there are complexities. You want to make the LPA as flexible as possible whilst giving you the most protection, by carefully considering your choice of attorneys and finally, of course, by ensuring that the forms are correctly drafted. It is worth paying a solicitor for this advice.

Solicitors will also help you choose your attorney; this might – or might not – be family members. Your attorneys need to be someone you can trust to make the correct decision for you, not only from a financial and health point of view, but also in accordance with your views, beliefs and wishes. Often it is a good idea to have a separate letter setting out more detailed wishes, especially when it comes to healthcare decisions.

This article was written by Katherine Carroll

Please note the contents contained in this article are for general guidance only and reflection the position at time of posting. Legal advice should be sought before taking action in relation to specific matters.

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