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.
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:
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.