Lasting Powers of Attorney (LPAs) are familiar as the power that an individual can give to a trusted family member, or friend or professional, to deal with their affairs if they develop problems with mental capacity, whether because of a degenerative disease such as dementia, or perhaps the result of an accident. No adult with family or financial responsibilities is ever too young to get advice on creating an LPA.
However anyone who heard Denzil Lush, a former judge of the Court of Protection, on the Today programme on 15 August would have wondered whether they had been right to create an LPA. He painted a picture of widespread abuse of these powers and said that, if he ever lost mental capacity, he would prefer to have a deputy appointed by the Court of Protection (of which he was the leading judge for decades) rather than an LPA.
Delay and cost of a deputy
There are indeed some relatively unusual situations where we would recommend having a deputy appointed by the Court of Protection, particularly cases where cooperation between attorneys (or between attorneys and family members who are not attorneys) would be unusually difficult. Other factual situations can occasionally make this the preferred route.
These are the exception rather than the rule. The high cost of applying to the Court for a deputy to be appointed, and the greater running costs, are a strong deterrent. Even more significant is the delay before a deputy may act – six months is not unusual, and this at a time when vital decisions about care etc often need to be made.
Denzil Lush's perspective may reflect the fact that LPAs come before a judge if things have gone wrong. The much larger number of cases where everything is properly done in the best interests of the person who had impaired capacity do not come before the Court. It is true that LPAs aren't perfect but, provided legal advice is taken when they are made, they are far and away the best option available for most family circumstances.
Not just finances
LPAs aren't just about money and assets. There are also LPAs for health and welfare decisions. Although it is technically possible to get a deputy appointed for health and welfare decisions, in practice the Court will almost never do so.
It would be a pity if Denzil Lush's comments put people off creating health and welfare LPAs. The medical professions are generally now accustomed to working with health LPAs, and Advance Decisions, as part of integrated patient care. If an individual takes no action at all, they can be left with the medical advisers, not their chosen family members or friends, taking the key decisions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
