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25th August 2017

Lasting Powers of Attorney: Still A Good Thing

I recently heard on the radio a retired judge saying some pretty startling things about Lasting Powers of Attorney (LPAs), which were then picked up in newspapers. The message seemed to be that, by appointing a relative or friend as LPA, a person is running a huge risk of being financially abused. Indeed, the judge suggested that one in eight people who’ve set up LPAs have placed their trust in the wrong person.  He said that everyone would be better off making no plans for their own future, but relying on the Court of Protection to appoint a deputy.

I don’t agree with this; indeed, I think that probably the most significant change the Mental Capacity Act has brought about is the way it makes it lawful for ‘ordinary people’ to say how decisions should be made if, in the future, they lose capacity.

And I must, ‘with respect’, as they say, disagree with the judge’s ‘one in eight’ figure for people abused by the attorneys they have chosen.

The real figures

By last year, the number of LPAs that had been registered with the Office of the Public Guardian, who manages them, was nearly two and a half million. Their use seems to be increasing fast: well over half a million of these were added last year alone.

And how often has the OPG asked the court to remove powers on the grounds that they were being misused? Well, last year, it was 272. And that was out of a mere 1,266 where concerns were reported for investigation. My arithmetic has always been shaky but this is, surely, less than 0.1 per cent of people who’ve been appointed as LPAs?

What are ‘lasting powers of attorney’?

This same judge is on the record as saying a couple of years ago that most people don’t understand LPAs. Clearly, from the numbers now being made, this is changing.  But it remains true that some professionals (and care home managers) are a bit hazy about what, exactly, is the effect of an LPA.

This is a pity for two main reasons. Firstly, if people have gone to the trouble of appointing attorneys to act for them if they lose mental capacity, it’s very annoying, to say the least, to have those attorneys treated as having no actual powers at all.  Secondly, these are real powers, that ensure, through the choice of a trusted attorney, that the person’s past and present wishes and feelings, their own personality, is at the heart of decision-making if they can’t do this themselves any longer.

LPAs come in two types, ‘Health and Welfare’ and ‘Property and Affairs’. Anyone can make either kind, or both, if they:

  • Are aged 18 or over;
  • Have the mental capacity to understand what powers they are giving, and in what circumstances they will apply; and
  • Aren’t being coerced or forced by someone else.

Differences between LPAs and Deputyships

When the MCA came into force, nearly 10 years ago, there was general rejoicing that we could choose our own attorneys, rather than have deputies chosen by judges who know very little, if anything, about our lives and personalities.

The LPA system is far cheaper and less bureaucratic. Of course, this does let in the possibility of fraud by LPA attorneys. Human nature being what it is, there will always be some abuse of vulnerable people, much as we all hate it. Deputies, indeed, are also sometimes removed from their position due to having abused their powers – and this applies to the ‘professional’ ones, generally accountants or solicitors, just as it does to the relatives.

A crucial difference between LPAs and deputyships is that a Health and Welfare LPA attorney - but not a deputy - can decide, if it arises and the person lacks capacity, about whether or not someone should receive life-sustaining treatment, or not.  Nobody has to give this power – they may choose, rather, to leave it to the medics at the time to decide what’s in their best interests. But many people would rather have such a decision made by people who know their wishes.

Responsibilities of care providers

Care providers have a duty to act within the framework of the MCA which includes, if they exist, LPAs. Some pointers on how to do this:

  • Start by reading chapters 7 and 8 in the MCA code of practice (link below). You don’t need to remember all the detail but, if you’ve had a look, you’ll know where to find it when you need it
  • For each person aged 18+, who has ever had the capacity, find out if they have given any of these powers: and, for the Health and Welfare one, whether or not it allows the attorney to make decisions about life-sustaining treatment
  • Read the document! There are other ways someone can personalise their LPA - you have to know what this particular person has decided
  • Remember that people have chosen, as their attorneys, people they know and trust. Attorneys are a gold-mine of information about the person’s likes and dislikes, what makes them happy, or sad, or angry. Do not start by assuming they’re ‘on the fiddle’ or aiming to abuse this person who now cannot make their own decisions – most of us choose well, in life, who to trust
  • Despite the above, do be alert to signs of neglect or abuse by attorneys, and know how to notify the OPG, as well as raising a safeguarding enquiry if appropriate. Such signs include the person being distressed, or just shabby, because the attorney refuses to use their money for clothing, hairdressing or outings; unpaid fees; and attorneys failing to recognise that they must, by law, make decisions in the best interests of the person as outlined in the MCA code of practice

There’s a lot of information in the MCA code of practice about the different powers of attorney, including Enduring Powers of Attorney (EPA)s, which could be used before the MCA came into effect:

https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice

You’ll find more on the website of the OPG:

https://www.gov.uk/power-of-attorney/overview

*All information is correct at the time of publishing

Rachel Griffiths

Mental Capacity and Human Rights Specialist

Rachel has huge experience and knowledge in the area of Mental Capacity, including how to recognise deprivation of liberty, when and how to assess capacity and how to go about making decisions in someone’s best interests. She is nationally recognised as a leading voice with regards to Mental Capacity, and is involved with setting the agenda as well as providing advice and information about Mental Capacity. The information, guidance and support that Rachel provides helps to ensure that the way people work is within the law and recognises that the person using services is always at the centre of any decisions made. Read more

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