Making sure your lasting power of attorney is legally effective, safe and protected from abuse

A recent ITV documentary called Elderly Theft - Robbing the Relatives, shone an alarming light on the way some people abuse their power over a loved one's finances after being given power of attorney to manage that person's affairs if they lose mental capacity.

In England and Wales there are more than 2.6 million Lasting Power of Attorneys (LPAs) registered with the single largest group being those for people aged between 81 and 90, closely followed by those between 71 and 80. The number registered is increasing every year, reflecting Britain's ageing population.

An LPA is a powerful legal document that allows a person (the 'donor') to appoint trusted individuals to make important decisions about care and finances on their behalf, in the event of a loss of mental capacity through an accident or illness such as dementia.

During 2016/17, the Office of the Public Guardian (OPG) received 5,327 safeguarding referrals but only investigated 1,266 cases of which 272 resulted in an application to the Court of Protection.

Quantifying abuse

Of course, there are proven cases which end up in court - like that of Richard Willis, who after being appointed attorney to his mother who had dementia, took £600,000 of her money. He was convicted of fraud and jailed for six years.

But according to some experts, the real prevalence of abuse is unknown and almost impossible to gauge because as most attorneys are family members, and therefore highly unlikely to report ways in which they have exploited their own position, there is little prospect of the OPG or the professional who drafted the LPA finding out about it, especially as a donor who lacked mental capacity would not be able to raise a concern either.

The system has recently faced criticism from former senior Court of Protection judge, Denzil Lush. He said: "There tends to be a lack of transparency and accountability in attorneyship which can have a devastating impact on family relationships, particularly between siblings."

Taking expert and professional legal guidance provides protection

Solicitors for the Elderly - an independent, national organisation of more than 1,500 legal professionals providing specialist legal advice for older and vulnerable people, their families and carers - believes LPAs are a positive and effective legal tool and that taking professional advice acts as a safeguard against abuse.

And there are a number of steps it advises, including forward planning, to ensure your lasting power of attorney is effective, legally robust and safe:

• Plan early - While you have capacity, it's vital that you get your affairs in order and choose the best people to manage your affairs, in case of an accident or illness. You can't appoint an attorney once you lose capacity;
• Choose carefully - Think carefully who you want to appoint as your attorney and have an open conversation with them so they understand your wishes and what their responsibilities will include. Consider appointing more than one person as your attorney so they can share the responsibility;
• Consider appointing a professional - A family member might not always be the best person to act as your attorney. Instead, you can appoint a professional such as a solicitor. They can act as a neutral third party and make unbiased decisions that are in your best interests. Bear in mind this usually involves a cost;
• Think about different circumstances - Consider how you would like your attorney to manage your property and financial affairs in different situations. For example, are you happy for your property to be sold to pay for your care costs?
• Address the difficult questions - Your attorney might have to make difficult decisions about your health and welfare. If you have specific wishes around your care plans, medical treatment, or end of life wishes, make sure you discuss this with them and make your choices clear in your document;
• Seek professional advice - Shop-bought and online LPA kits may be suitable for those with very straightforward financial situations or with considerable legal experience, but for most people, seeking professional legal advice is the best way of ensuring that an LPA is effective, legally robust and safe;
• Keep your plans current - Make sure you keep your LPA updated if your circumstances change. Your choices around the people you want to be responsible for your finances and wellbeing may change, such as following a marriage or divorce, when children reach adulthood, or if parents pass away.

For more information about LPAs, please contact Wards Solicitors' Will, Probate and Mental Capacity team, now one of the biggest departments in the South West.