22/10/2018
Judith Bromley
The number of people being investigated for abusing property and financial lasting power of attorneys has risen 46%. The Office of the Public Guardianis looking into 1,647 more cases than last year, prompting concern amongst the industry and public alike.
A lasting power of attorney is a legal document that allows a person – known as a donor – to select an individual, or individuals, to act on their behalf should they lose mental capacity due to an accident or illness, such as dementia. These elected people are known as attorneys.
There are two types of power of attorney; one covers property and finances and the other deals with health and welfare. In both cases a power of attorney must be completed while the donor is still of sound mind.
A property and affairs LPA allows your attorney to handle your finances, such as any property and savings you may have, paying for care fees or arranging the sale of your home if necessary.
A health and welfare power of attorney addresses your personal well-being. It outlines what medical treatment you should receive or where you live, for example. You can even give your attorney the power to accept or refuse life-sustaining treatment on your behalf.
Although the number of investigations into misconduct has risen, many in the sector believe the problem is not due to the principle of a power of attorney, but perhaps with whom donors choose to represent them. Usually, it’s adult children who are appointed attorney, but donors need to be brutally honest about who they pick – after all, it’s they who will face the consequences of their choice.
Those with adult children who are not good at managing money or who could potentially steal from them need to face reality. Whether siblings get along with each other also needs to be considered as it could prove problematic when making decisions on behalf of the donor.
To help combat this, donors who have more than one attorney can determine whether they must all agree on every decision or whether they can act independently of each other. Alternatively, solicitors can be appointed as attorney. Once activated, they charge for their service, but the advantage is that they’re neutral and are accountable for any wrongdoing.
Around 850,000 people in the UK are currently living with dementia and this figure is set to rise following a sharp increase in the number of people being diagnosed, or at risk of being diagnosed, with the condition.
Despite this, people aren’t looking ahead. In fact, a recent report produced by Solicitors for the Elderly warned that the UK is heading towards a dementia crisis because people aren’t making arrangements in case they’re diagnosed with a degenerative mental illness.
The report claims that 12.8 million people over the age of 65 have a high possibility of future incapacity, yet they haven’t planned ahead by setting up a lasting power of attorney.
Records show that there are only 928,000 health and welfare lasting powers of attorney currently registered in England and Wales. This is expected to increase to 2.2 million by 2025, but by then around 13.2 million people will be at risk of dementia.
While three quarters of the population fear dementia or the loss of capacity to make decisions, 97% – 49 million people – will be at risk with no relevant legal plans in place for their future care.
Although incidents of attorneys acting questionably do occur, families without a power of attorney can face real problems. As many as 65% of people believe that they if they lack mental capacity, their next of kin can specify medical and care decisions on their behalf. But without a power of attorney, it doesn’t necessarily follow that the person who has lost capacity can choose who makes decisions for them.
In the event of a lasting power of attorney not being in place, there is a £400 application fee for someone to volunteer to be a deputy for the donor, as well as ongoing supervision charges from the Court of Protection to safeguard the vulnerable person. There could also be care fees to pay while the deputyship is being processed. All of this takes far more time and money than setting up a lasting power of attorney in the first place.
At Russell & Russell, we have a team of qualified lasting power of attorney experts. We also offer a free, no obligation consultation where we can talk you through the process and answer any questions or problems you may have.
Please note that this article is meant as general guidance and not intended as legal or professional advice. Updates to the law may have changed since this article was published.