RECENTLY, retired senior judge Denzil Lush warned of a lack of safeguards preventing financial abuse by Attorneys acting under Lasting Powers of Attorney for Property and Financial Affairs (LPAs).

Sadly, cases do arise which highlight the potential consequences of appointing unscrupulous Attorneys.

This article considers whether in light of such warnings, it is still advisable to make an LPA.

Making an LPA enables you to appoint people to make decisions about your property and financial affairs if you become unable to do so in the future.

The person making the LPA is described as the “Donor” and the person or people appointed to act on their behalf are described as “Attorneys”.

When preparing an LPA for you, we will ensure that you are fully aware of the nature of the document and its potential impact.

We will also talk in detail about who you wish to appoint, and why, and provide robust and independent advice about your choice of Attorneys.

There are numerous options as to how and when your Attorneys can act, and we will cover these options with you to ensure that the LPA will work as you wish it to.

Once an LPA is complete, it must be registered with the Office of the Public Guardian before it can be used. Before registration, someone must sign the document to confirm that you understand the nature and effect of the LPA, and are not being pressured into making the LPA. This may be your solicitor or, depending on your personal circumstances, a doctor or other medical practitioner.

Although the activities of your Attorneys will not be actively monitored, anyone can report concerns about the behaviour of an Attorney to the Office of the Public Guardian, who can investigate and remove Attorneys if necessary.

Until recently, Judge Lush was the senior judge of the Court of Protection, which often deals with the affairs of people who do not have sufficient mental capacity to manage their own affairs. He suggested that the appointment of a “Deputy” by the Court is preferable to making an LPA. The role of a Deputy is similar to that of an Attorney, but a Deputy is appointed by the court, whereas Attorneys are appointed directly by the Donor.

There are additional safeguards governing the activities of Deputies which do not apply to Attorneys. For example, Deputies are required to submit annual financial reports to the Court, and usually must purchase a type of insurance bond to protect the funds of the person lacking capacity. As with LPAs, the Court can remove a Deputy who has acted unscrupulously.

However, applying to the Court for a Deputy to be appointed is far more costly than making an LPA. Not only does a Deputyship appointment cost more initially, but there will also be ongoing costs payable to the Court and, potentially, professional advisors such as solicitors each year. In addition, you are unable to choose who is appointed as your Deputy as the Court will make the decision on your behalf, whereas making an LPA ensures that you are in control of who will manage your affairs.

Clearly the concerns expressed by Judge Lush ought to be taken seriously. To appoint someone as your Attorney is to place an immense amount of trust in them. However, this highlights the importance of having comprehensive legal advice when making an LPA. A well drafted LPA is still a very useful tool which can provide considerable peace of mind.

Should you wish to discuss any matter relating to this article please contact Stuart Duckett Solicitor on 01244 312166 or email