I was quite shocked earlier this week to read that Denzil Lush has declared that he himself will never draw up a Lasting Power of Attorney.
Denzil Lush was the senior Judge in the Court of Protection for some 20 years (the Court of Protection is the Court in England and Wales which is responsible for financial and welfare matters for people who cannot make decisions themselves).
Most solicitors would expect Mr Lush to have a sound knowledge of capacity issues but there is widespread astonishment amongst solicitors at his comments.
Mr Lush has stated that he himself has more confidence in a Deputyship Order than he has with a Lasting Power of Attorney and reportedly has said that he has never seen a Power of Attorney work well in practice.
With all due respect to Mr Lush, I think that remark is misleading. Generally the Court of Protection only get involved when things go wrong and in very difficult cases and he is unlikely to know the details of the thousands of Lasting Powers of Attorney which work well year in year out.
Most of my clients trust their family to manage their affairs if they lose capacity and would not want an expensive deputyship procedure to be initiated. I have seen at first hand the distress caused to many families where illness has struck, possibly unexpectedly, and they are then faced with an expensive lengthy application to Court to get the authority to access funds of their loved one as there are bills to pay and care fees to settle.
In my view, appointing someone to act as your attorney does come with a certain amount of risk, although that risk is very small where it is a trusted family member. Where we prepare a Lasting Power of Attorney for a client we would go through all of this carefully.
What is of more concern to me is that over the last 10 years, the protective measures in the Lasting Power of Attorney process have been watered down. This is one part of the law where I think my native Scotland offers more protection as every Power of Attorney in Scotland needs to have a certificate signed either by a practising solicitor or doctor certifying that the individual understands the document and the powers they are giving away. In England and Wales the person signing the certificate can be virtually anyone who supposedly knows the donor (though no checks are routinely made) and therefore there is much more scope for abuse or even forgery in extreme cases.
It appears that Mr Lush has made the remarks in the context of promoting a new book and perhaps reporting of his remarks has been sensationalised for publicity reasons.
I would stress to my clients that a well drawn up Power of Attorney is generally preferable to the Court appointing someone to look after your financial affairs. You know your own family best and you know if they are suitable to manage your finances if you cannot.
As always please speak to a member of the team if you would like to talk about Powers of Attorney or any particular concerns you have.