Lasting Power of Attorney: A response to the comments made by Judge Lush

In August 2017, Denzil Lush, a retired Senior Judge from the Court of Protection, said he would never sign a Lasting Power of Attorney because of the risk of financial abuse and the devastating effects on family relationships.

Judge Lush also commented that the system of appointing deputies by the Court of Protection had been “demonised” by a “crusade” against it. The deputyship system is certainly subject to a lot more oversight by the Court, with Deputies required to provide annual accounts to the Court and a full list of assets to prove that the protected party’s assets are not being mismanaged.

While the appointment of deputies is a more expensive and time consuming option compared to registering a Lasting Power of Attorney, Judge Lush believes the benefits outweigh the cost.

Putting in place an LPA

The vast majority of solicitors in this country advise their clients to put LPAs in place, rather than risk their relatives having to apply to the Court for deputyship if they were to lose mental capacity. But is this advice correct, in light of the Judge’s comments?

In order to answer this question, it is a good idea to consider the figures. Data released to this firm by the Office of the Public Guardian and Ministry of Justice following a Freedom of Information Act request reveals the following:

As of August 2017, there are 1,891,263 Property and Financial Affairs and Enduring Powers of Attorney registered in England and Wales. The total number of investigations into the conduct of attorneys during the 2016-17 financial year was 1,379. Of these, 272 led to an application to the Court of Protection.

This means that out of all of the Powers of Attorney currently registered, in the previous financial year only 0.7% are subject to an official investigation, and only 0.01% lead to an application to the Court of Protection. These figures suggest that the overwhelming majority of Powers of Attorney work very well.

Further, Judge Lush’s comments need to be put into the context of him having served a twenty-year long career at the Court of Protection, which will have presented him with the very worst cases of financial abuse. It is perhaps understandable that his views on the system have become somewhat jaded over the years. Whilst there is no official data on the number of abuse cases, these appear quite rare in comparison with the large numbers of people who benefit from LPAs.

Of course, there will always be people who will seek to use such a powerful legal instrument for wrongdoing and the risk of exploitation can never be entirely eliminated. This is why it is important to obtain independent professional advice on your LPA and to choose your attorneys carefully. The application process requires that an independent third party provides a certificate confirming that the person making the LPA is fully aware of the effect of the document and no undue pressure is being put on them to sign it.

We still consider that an LPA can be a positive and effective legal tool which ensures your affairs can be looked after if you lose capacity, and can avoid lengthy and expensive applications for deputyship to the Court of Protection.

If you are affected by any of the issues raised here, please contact cop@psg-law.co.uk .