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Lasting power of attorneys still 'useful' - industry reacts to 'lack of safeguards' comment

16/08/2017 News Team

Lasting power of attorneys can still be “useful”, a senior associate at Blake Morgan has said of retired senior judge Denzil Lush’s comments that there is a lack of safeguards in the systems in England and Wales.

According to Mr Lush, people should be made aware of the risks of signing the legal document, which allows someone to make your financial decisions when you no longer have the ability to do so. Nearly 650,000 applications were made to register the document last year, and currently, 2.5 million are registered.

Mr Lush spent two decades as senior judge in the Court of Protection, and in his book which provides a legal guide on lasting power of attorneys (LPAs), has said the lack of transparency causes “suspicions and concerns which tend to rise in a crescendo and eventually explode”.

Laura Harper, both a senior associate and specialist in succession and tax at Blake Morgan, highlighted Mr Lush’s claim that the number of investigations into attorneys by the Office of the Public Guardian has risen by 50 percent compared to last year, calling it “a positive change as people become more aware of how LPAs should be used and recognise the need to report suspicions early”.

Ms Harper added that if more people reported their suspicions, abuse could be identified sooner and attorneys can be “monitored or could be removed, if necessary”. Blake Morgan will continue to advise clients to make LPAs, Ms Harper continued, “albeit with caution as to who they appoint as their attorneys”.

Blake Morgan advises clients who are making an LPA to only appoint someone they trust, consider appointing more than one attorney, tell other people they have made an LPA, and if their situation changes, to cancel the LPA.

Solicitor at law firm Coffin Mew, Spencer Gardner, agreed that completing an LPA remains a “sensible option”, and said most LPAs are used for their proper purpose, though “despite very strict rules against what can be given as gifts and claimed as expenses to help prevent this sort of behaviour, there are instances where LPAs have been misused”.

The concerns raised by Mr Lush can be “easily mitigated”, Mr Gardner commented. “For example, to guard against the risk of abuse, it is vital for the donor of an LPA to choose their attorney carefully, with many opting for trusted family or friends. It is possible to appoint joint attorneys to further reduce the risk of abuse from a ‘rogue’ attorney. It should also be borne in mind that a suitable professional can be appointed as attorney, thus relieving any pressure that may be felt by a family member or friend in the role.”

Mr Gardner added that the donor should discuss the existence of the power, the reasons for selecting the attorney or attorneys, and how they would like the power to be used with all who may be involved in order “to reduce the chances of conflict arising between family members at a later stage”.

He concluded: “Those who wish to make best advantage of LPAs as part of their life planning should consider taking professional advice about the appropriate measures available to help safeguard against the LPA being misused or exploited.”

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