Lasting Powers of Attorney v Court Appointment of Deputy.
I have already written more than one blog in which I seek to encourage the making of Powers of Attorney, specifically ”Lasting Powers”.
Those are the ones which remain in force after the person who made it might have lost their “mental capacity”, and with it the ability to look after themselves. To look after their own needs in terms of food, cleanliness, money management and so on. Sadly, we are all aware that there is the chance of terrible illness in older age, and the creation of a Lasting Power is a hope that arrangements can be put into place now, to take effect if the worst happens.
As I have explained, the overall supervisor of anyone who is appointed as an Attorney by one of these Deeds, is the Office of the Public Guardian. Created in 2007, it does the work previously done by the Court of Protection. Nowadays the labels “Guardianship Office” and Court of Protection seem to be interchangeable.
The Ministry of Justice and the Public Guardianship Office have been promoting their message – “Make a Lasting Power” – for years now. – LINK HERE -.
They make the point that a person who does not, but then later needs a specific carer for making financial decisions, would otherwise face the refusal of Banks and Care Homes and other parties to deal with anyone who had not applied for and obtained a Court Order.
The Court Order is an appointment of a suitable person as a “Deputy”. Part of the message of those encouraging the use of lasting Powers, is that the Deputyship alternative is slow and costly and difficult.
Presumably, on the basis of a shared assumption that fast and cheap and easy is a good thing.
Well, up to a point Lord Copper.
I was rather taken aback to read this week in several newspapers of a the stated views of Senior Judge Denzil Lush – until last year sitting at the Court of Protection. He says he would never sign his own Deed of Lasting Power of Attorney. – LINK HERE –
Although the present Lasting Power regime is subject to more scrutiny in its creation than the earlier “Enduring Power” still he says his view is based upon case after case of financial misuse by the appointed attorney.
In his stated view, the more onerous requirements of the Court regarding a deputyship application are a “Good Thing” – that a process which is “too easy” may well be “too dangerous”, and that the checks and restrictions imposed by the Court work entirely for the benefit of the person being cared for.
It is all so difficult. Who is right?
I think there may be a case for preferring the checks and balances the Court of Protection seeks to provide in appointment of a Deputy, where there are large values involved. If a person has millions of pounds, temptation to be dishonest can be high and anyway the patient can afford to pay the Court its fees.
But many of the elderly ill may have very little money and just need someone to be there for them, which is what the lasting power system may be easier to achieve.
And then again, the journalist Christopher Booker has often highlighted horrible failures of the Court and accused it of an obsessive secrecy and thoughtless siding with misguided social workers. An example, – LINK HERE -.
Judge Lush has perhaps based his opinion upon his experience of having to deal with case after case where the appointed Lasting Attorney has proven to be dishonest and greedy, stealing from the patient and putting the patient’s interests well below their own, if anywhere. And he is presumably right, that a Lasting Power in the hands of a crook, is a terrible thing and the damage it can enable the crook to achieve may be irreversible.
After all it was Judge Lush who heard the case of a man who charged his mother £400.00 for every visit he made to her care home – LINK HERE –
So his opinion is formed from first hand knowledge of the worst behaviour imaginable.
I suppose none of us know who we can really trust until trust is put to the test.
But whether the answer is truly that people should stop making Lasting Powers and instead rely upon the wisdom of the Court of Protection – what do you think? Toss a coin and make a wish?
Here’s the Song – LINK HERE –
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