16/10/2019

Lasting power of attorney abuse has seen a significant rise with many more cases coming to light, according to The Office of the Public Guardian (OPG).

Lasting power of attorney (LPA) allows a person (or attorney) appointed on behalf of an individual (the donor) to manage the donor’s personal affairs should they lose mental capacity.

They are a safe and sensible choice for people who want peace of mind that their affairs will be looked after by people of their choosing without the need to apply for a court order, which can be costly, time-consuming and stressful.

However, lasting power of attorney abuse is on the increase. The OPG applied for court orders against attorneys in more than 700 cases in 2018/19. Although the number of people making LPAs has increased, the rise in the number of legal actions against attorneys is increasing much faster, suggesting that financial misconduct is becoming disproportionately prevalent.

The most common reasons for the OPG’s intervention are making improper gifts and not acting in the donor’s best interests, which has resulted in the removal or censure of the attorneys.

The OPG only acts against attorneys who are still managing the donor’s financial affairs and unfortunately, misuse of the power is often only discovered after the donor has died. This means that there are even more cases where financial abuse is undetected until it is too late for the OPG to intervene.

Using a solicitor to create your LPA is the safest way

This sharp increase in lasting power of attorney abuse is reflective of the rise in DIY and online submissions where a solicitor has not been involved in the process. This means that attorneys often lack knowledge of the Mental Capacity Act 2005 Code of Practice.

It is essential that donors implicitly trust those who they appoint. By using a solicitor, they can rest assured that checks are made to ensure they are making the LPA voluntarily in the absence of duress. Using a solicitor can also help donors and attorneys to understand the implication of the document and what the attorney can and cannot do.

When used properly and within the framework of the Code of Practice, LPAs are an extremely useful tool to enable an individual’s affairs to be managed if they lose mental capacity.

If an LPA is not made and an individual loses mental capacity, a Court of Protection application will be required to appoint a Deputy to act on their behalf. This is a lot more expensive and takes several months to process, with the individual’s affairs being left unmanaged for this period.

If you are considering making an LPA and are concerned about the potential pitfalls of not using a legal expert, including lasting power of attorney abuse, please contact the private wealth team at Beswicks Legal to obtain professional advice to guide you through the process.

Phone 01782 205000 or email enquiry@beswicks.com.