Power of attorney warning ‘misplaced’, says North West lawyer

Claims by a senior judge that the ‘power of attorney’ system is open to abuse should not put people off making them, according a North West lawyer.

Kristina SmithKristina Smith, a partner at Birchall Blackburn Law, says that if the right legal advice is taken, the risk of family members or others abusing the system for their own financial gain is reduced.

Kristina was speaking after Denzil Lush, a former senior judge in the Court of Protection, said he would never sign a lasting power of attorney (LPA) and urged people to be aware of the risk of being exploited.

An LPA is a legal document that allows someone else to conduct a person’s financial affairs, as well as make decisions about that person’s welfare, should they lack capacity to do so, for example through illness or injury.

Kristina, an accredited Dementia Champion and member of Solicitors for the Elderly, said: “LPAs can now be made online without the need for a solicitor and this is where the danger of abuse lies as how do you really know who is applying for that power of attorney.

“We only make powers of attorney following two face-to-face meetings with the donor and after fully assessing their capacity to do so. This significantly reduces the risk of undue influence.”

LPAs can only be made by a person when they have full mental capacity. Once a person lacks capacity they cannot make an LPA and family members must apply to the Court of Protection to be appointed as a deputy.

Kristina adds: “People should not underestimate how useful an LPA is. For example, many people are unaware that if their spouse lost mental capacity, they would not be able to access funds that aren’t in joint names without a power of attorney.

“Hopefully, you’ll never need it, but as people live longer and their chances of developing illnesses like Alzheimer’s disease increases, an LPA acts as an insurance policy. It makes the process of dealing with your affairs much easier for family members and loved ones.”

Last year 650,000 applications were made to register a LPA document and 2.5m are already registered.

If there was no LPA in place and you could not make one due to lacking capacity, an application by a proposed deputy, such as a qualified solicitor or family member, can be made to the Court of Protection to be appointed to manage your financial affairs.

While more expensive, the process is seen as more transparent as a deputy has to provide a full list of your assets and annual accounts, as well as provide a security bond that can be claimed if money is spent inappropriately.