People just won’t behave like they ought to. Who’d have Thought? EPAs and LPAs.
As every computer programmer knows, once a piece of software is released into the public domain, it will be used by ordinary people in ways that the programmer had never even imagined.
The classic example of this is office workers years ago faced with a computer mouse for the first time, waving it in the general direction of the screen and hoping for something to occur. Dealing with people eh? Herding Cats.
This phenomenon – that the public simply won’t behave – has caused head scratching for all kinds of engineers, not least social engineers. As examples the original Communists – even the Hippies, People who try to re-engineer Societies, often base their theories on a belief that humans are basically mature people who left to their own devices will care for each other and contribute to the welfare of each other.
Yes humans love to care for the needy and make contributions for no personal gain don’t they! Good luck with that.
The subject of this blog is the legal framework in England set up for caring for the [usually elderly] people who are no longer able to care for themselves.
Usually because of loss, or partial loss, of mental capacity.
In England in 1985 the then new Enduring Powers of Attorney Act recognised the need for a framework. The Act created a new kind of Power of Attorney – one which lasted in effect, remained in force, even when the person who has signed it has subsequently lost mental capacity. The only previous sort of Power of Attorney was a much more commercial business-related document and would have been no use for a dementia patient because it would have expired just when loss of mental capacity occurred – which is when it was actually needed.
The law was proposed initially to enable a system of “light touch” regulation with regard to the care of such persons.
We have seen how well a “light touch” worked with Halifax Bank of Scotland regulation on 2007. [NB for those not in the know – it turned out badly!]
The position turned out to be much the same in relation to Enduring Powers of Attorney. [EPA]
The original assumption was that the Donor of a Power of Attorney would, being thoughtful for the future make an appointment in the name of an adult child or close friend to care for them when and if necessary to manage their finances but not their medical care.
Guess what, it turns out that in case after case, the pressure for the making of an EPA came from the children, often long after the Donor was actually able to understand what was going on.
Before too long the Courts and the Police began to hear of cases where people who had already lost capacity were shown to have signed documents which they did not understand, or alternatively which they were misled or threatened into signing in favour of unsuitable and uncaring family members or nurses or “friends” who then began to use the Enduring Power of Attorney as a licence to ransack the patients savings.
The law makers thought about this for a while and next came up with the Mental Capacity Act of 2005 .
It replaces the EPA with the present system which is a document of two parts called a Lasting Power of Attorney. [LPA]
One very significant difference in the new LPA is that a “Certificate Provider” is involved.
This is someone, often a Doctor, who will check the position and then sign a form to confirm that the Donor at the time of making the Power of Attorney still holds the necessary mental capacity to do so and is not being threatened.
The Mental Capacity Act also provides for scrutiny as to the subsequent behaviours of the named Attorney.
Recently we have seen such a safe guard in effect in the case of “SF” of 2015 published in October. You can read it on this link
In this case the Judge was moved to call the behaviour of the Attorney “callous and calculating”.
This was a case of an EPA rather than a LPA.
The son [who is a retired Accountancy adviser and Independent Financial Consultant], is the only son of the Patient. The Power of Attorney was signed in 2004 and was registered in 2009 when his mother lost mental capacity.
Subsequent to that the son has paid into his own account the sum of £117,289.45 of his mother’s money. This he justified to the court as being “out of pocket expenses”.
In a statement to the Court the son said “I am the sole heir of my mother and because of her dementia and current poor health there is really no need to protect her estate’s financial interest as they are effectively mine”
The Judge described this attitude as “repugnant” and in summary declared “one would be hard pressed to find a more callous and calculating Attorney who has so flagrantly abused his position of trust”
The telling point is the Attorney’s clear belief that his mother has turned vegetable and that her money is now his money. His take on the situation therefore could be paraphrased – “by her selfish refusal to die she is stealing the nursing home costs from me”!
I suspect that this mind-set is not unique to this particular case.
This is an example of the Powers of the Courts to disqualify the son from his position of Attorney because of his behaviour, in spite of the fact that his mother signed the Power with no duress and of her own free will.
Nevertheless, the sum of nearly £120,000.00 is now in his pocket. There is no mention in the judgement of repayment. Still less, of prison.
I wonder whether it is only my own opinion that there is a cause for concern about this case which gives some support to the arguments of those who are opposed to any relaxation on the rules of “Assisted Dying”.
Many of the proponents of the so called “Right To Die” say that when life becomes unbearable and the patient is unable to speak for him or herself then those closest [my italics] should have the choice of bringing that life to an end.
Is it not in fact a problem that it is those very people, – [“those closest to the patient”] who are often also closest to the patient’s money?
Perhaps those most likely to benefit financially from the death of the patient, should be the last people to have their views taken into account, as to when that death should happen? Just a thought.
Or perhaps most people are naturally caring and anxious to doing the right thing? Yes, right.
If you would like to have your Company’s Notarial work done properly, including assisting with Foreign Powers of Attorney, do please get in touch – You can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email firstname.lastname@example.org