Latimer Hinks Solicitors in Darlington is calling for stricter safeguarding rules to be considered when creating a lasting power of attorney (LPA), as investigations into the actions of appointed attorneys reach a record high, suggesting that financial abuse of vulnerable people by those acting on their behalf is on the rise.
In 2018/19, the Court of Protection received 721 applications to censure or remove attorneys, up from 465 applications in the previous year, with legal action taken against individuals with power of attorney doubling in the last two years.
Safeguarding investigations also increased by more than 50 percent, with nearly 3000 inquiries launched during 2018/19 by the Office of the Public Guardian (OPG), the branch of the Ministry of Justice which administers LPAs.
There has also been an increase in applications for LPAs, up from 525,915 applications in 2015 to 810,275 in 2018.
Jennifer Quayle, a solicitor at Latimer Hinks, said: “With the continuing rise in dementia and a population that is living longer, the figures show how important it is for people to understand how to act under a power of attorney, and the need for safeguarding and professional input in the process. More needs to be done to demonstrate the legal implications of abusing this power.
“The reported rise in financial abuse most commonly relates to the attorney making improper gifts or not acting in the best interests of the donor, that is, the person who created the power of attorney. Under Section 12 of the Mental Capacity Act 2005 attorneys have powers to make gifts on behalf of the donor, but only in certain circumstances, and even if the circumstances of a gift are reasonable, they must be appropriate to the circumstances of the donor and attorneys must be acting in the donor’s best interests. Unfortunately, this is not always the case.”
An LPA provides the authority to act when someone is at their most vulnerable. It is a legally binding document, recognised by banks and other financial institutions and allows the appointed attorney to make financial decisions on behalf of the donor, including accessing bank accounts and paying bills as well as managing property, pensions, taxes and investments.
When a person loses mental capacity their spouses, civil partners, or children have no automatic right to look after their finances. Without an LPA, the Court of Protection would need to appoint deputies to act on behalf of the person without capacity, which can be a lengthy and costly process and the deputy could be someone who does not know the donor or perhaps who the donor would not want.
Jennifer added: “We can all play a role in bringing these statistics down. An LPA is a powerful document, which must be regulated to ensure it is not subject to abuse. Solicitors can offer advice and support to clients to make sure that an LPA is established correctly and that clients are comfortable with the powers the attorneys have under the LPA.
“LPAs are quickly becoming an essential element of lifetime planning, as individuals wish to ensure that someone of their choice is able to deal with their affairs, should this be required. Seeking out professional advice to get things correct from the outset can ensure you do not become part of the disturbing statistics on financial abuse.”