Power of Attorney or Deputyship – which is better?
Powers of Attorney have hit the news today after a retired Court of Protection judge said he would never make one.
In the foreword to his new book, ex-senior judge Denzil Lush argued that allowing the Court of Protection to appoint deputies was a safer option than registering a Power of Attorney.
He argues that appointing attorneys often leads to family members falling out over a relative’s ‘best interests’ – and that an unscrupulous attorney can too easily exploit the system for their own financial gain.
There has been some critique of the judge’s position, with Martin Lewis of MoneySavingExpert writing on Twitter:
A useful warning.Yet I think demonizing power of attorney a mistake, its often a crucial lifeline compared to slothful court of protection. https://t.co/ZnyYQF8xq0
— Martin Lewis (@MartinSLewis) August 15, 2017
Applying to the Court of Protection is a rigorous and expensive process. It can be slow as well – and with almost half a million LPAs registered last year, the system could descend into gridlock if many people chose to let the Court appoint their deputy.
Should I make an LPA or let the Court appoint a deputy?
We have solicitors specialising in both Lasting Powers of Attorney and Court of Protection deputyships.
For most of our clients we tend to advise that making a Lasting Power of Attorney is simpler, quicker and less expensive.
That said, where there’s a risk of financial abuse by family members, we might advise that the Court of Protection is the safer route.
So, is it safe to make an LPA, or should you leave it up to the Court of Protection to appoint a deputy for you?
The answer comes down to choice vs oversight. When you make an LPA, you can choose who will look after your interests if you’ve lost capacity.
When the Court of Protection appoints a deputy for you, legally you don’t get a say – but the Court will keep a much closer eye on how they manage your finances and care.
Whether you choose to make a Lasting Power of Attorney therefore depends on whether you have full confidence in your attorney(s) to work together with your family and not abuse your trust.
If you have any concerns in this regard, there are a few routes forward. It’s possible for example to appoint multiple attorneys and require them to make decisions jointly – so each can keep an eye on the other.
Another route is to appoint a solicitor to act as your attorney. Solicitors are bound by a strict code of conduct and are overseen by a regulator, so we are required to manage your affairs responsibly if we’re appointed as your attorneys.
This option gives you some protection from financial abuse and means decisions can be made by someone independent of any family disputes.
It’s not dissimilar in practice to the Court of Protection appointing a solicitor as a professional deputy for you, although the level of supervision is not quite as strict.
However, the time a solicitor spends managing your financial affairs or care will usually be chargeable to your estate, meaning this option is more expensive than appointing a relative or friend.
In any case, the lesson here seems to be that getting sound legal advice before you make an LPA is important, including advice on who to choose as an attorney. Including your family members in the discussion early on is also a good idea, so that they have a clear understanding of what’s going on.