Anyone can make a Lasting Power of Attorney (LPA) providing they have capacity to do so. If someone doesn’t have capacity to make an LPA, they will have to apply for a Deputyship Order through the Court of Protection.
Attorneys VS Deputies
The difference between attorney’s (those who have the authority to act for someone who lacks capacity, hereafter referred to as ‘P’, under a Lasting Power of Attorney) and deputies (those who have the authority to act for P under a deputyship Court Order) is the level of supervision. Deputies are proactively supervised by the Office of the Public Guardian (OPG), having to complete yearly deputy report forms and potentially receiving visits from them to ensure the best interests of P are being upheld. The level of supervision for attorneys is drastically lower however there are safeguarding steps the donor (person making LPA) can take when making an LPA. For example, the donor can take protective measures to safeguard this by inserting supervisory instructions/preferences in the LPA which are carefully worded and can include things such as reference to supervising third parties and the need for the attorney to maintain accounts.
If you believe there is a safeguarding concern which involves the attorney and the donor lacks capacity, you should begin by reporting this to the OPG who can then intervene. Other people you may want to notify are social workers, the police and the local authority. If there is only one attorney named on the LPA, you should also consider making an urgent application for an interim deputy to be appointed by the Court of Protection. The Legal test which must be satisfied for removing an attorney is under section 22(3)(b) of the Mental Capacity Act 2005 which states as follows:
the attorney must have “behaved, or is behaving, in a way that contravenes his authority or is not in P’s best interest, or proposes to behave in a way that would contravene his authority or would not be in P’s best interest”
If the above is satisfied, the Court can revoke the LPA or direct that the LPA is not registered.
LPA’s require careful consideration. The donor’s choice of attorney should be discussed and the level of power that an attorney is given should also be considered. The drafting of the LPA is important due to the protective measures that can be included in the forms. For example, at least one person should be named on the Notices section which would allow them to raise an objection should they suspect financial abuse. It may also be in the donor’s best interest to delay the registration of the LPA however this deferral can cause issues as it typically takes 6-8 weeks for the registration process to be completed. This is subjective to each case and that’s why it’s important to know the implications of making an LPA and of the protective measures you can take to prevent its misuse.
If you would like any more information, call us today and ask to speak with our Private Client Team 01702 338338.