Power of attorney leaves elderly open to abuse, claims senior judge

Published by Rachel Lacey on 16 August 2017.
Last updated on 16 August 2017

Power of attorney leaves elderly open to abuse, claims senior judge

Insufficient safeguards on lasting power of attorney (LPA) agreements are leaving elderly and vulnerable people open to abuse, according to a retired senior judge.

Denzil Lush, who retired from the Court of Protection last year, has written a book on what is considered to be the definitive guide to the area of law, which seeks to protect individuals that are not able to look after themselves.

In the foreword to the book, he claims that the Ministry of Justice has been “disingenuous” in promoting LPAs and says that “a lack of transparency causes suspicions and concerns which tend to rise in a crescendo and eventually explode”.

In the last year, there were 650,000 applications to register lasting power of attorneys and there is a total of 2.5 million currently registered. The legal documents allow individuals to hand over the responsibility for managing their finances or making decisions about their health and wellbeing to trusted family members or friends in the event that they are no longer able to do so themselves.

Yet Mr Lush has reportedly said he would never sign one himself and that they can have a “devastating” effect on families.

‘There are positives and potential negative to setting up LPAs’

Although overall there is no official measure of financial abuse against the elderly there is plenty of anecdotal evidence.

The charity, Action Against Elder Abuse, says that in one year alone its helpline received reports of theft from elderly people that totalled £42 million. In the majority of cases the money had been taken by family members who felt they were entitled to ‘take their inheritance early’.

Stephen McCarthy, director of Action Against Elder Abuse England, says: “We regularly hear from family members of older people who have only recently heard of abuses by their attorneys, often when it is too late to effectively do anything about it. At the very least, the public deserves to be furnished with information relating to both the positives and potential negatives of setting up a power of attorney. It is simply incorrect to suggest that the process is not open to abuse."

He adds: "There can be few people better qualified than Mr Lush to comment on the shortcomings of the current power of attorney process. While it is understandable that the Ministry of Justice is keen to ensure that provision is made to support people when mental capacity becomes limited, power of attorney is wrongly presented as a risk-free solution.”

‘An LPA is about nominating someone you trust’

However, financial services firms that encourage older people to register an LPA as part of the retirement and estate planning process say these reports should not put them off.

Dean Mirfin, technical director at Key Retirement says: “A power of attorney is about nominating those you trust. To suggest that abuse is symptomatic of the system is clearly not evidenced and it is unfortunate that this isn’t balanced with the heartache and horrendous issues faced in many cases by those who do not have LPA’s in place when things go wrong.

“What I think is very important is that choice of attorney is paramount and that appointing “carers” and those who we believe to be “friends” to take care of our finances and health and welfare are questionable against either a professional attorney or our children. Someone being a friend does not mean that they can be trusted with our money.”

Rachael Griffin, personal financial planning expert at Old Mutual Wealth, adds that there are steps individuals could take to reduce the opportunity for abuse. “People able to appoint more than one person to act on their behalf, where both signatures are required, which could provide greater peace of mind.”

She continues: “With the continual rise in dementia, there is a very real risk that people will be left in a vulnerable position if they don’t register a LPA. Those with dementia are particularly vulnerable to the theft or illegal use of their property, money or other valuables. A LPA can only be registered while you have mental capacity – once you’ve lost capacity it is too late.”

However, while she supports the use of LPAs she does say that the system could still benefit from a review. “The concerns raised by Denzil Lush regarding the safeguards in place should act as a prompt for the Ministry of Justice to review the protections in place and perhaps a protector type role should be extended across all LPAs in place.”

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Denzil Lush, may well be the

Denzil Lush, may well be the foremost judge in dealing with the outcomes of LPAs, but it sounds as if he has never been on the other end of the equation.
It is us, the relatives named in the LPA, who take on the brunt of the work in dealing with our elderly relatives with dementia and satisfying the authorities who try to step in and provide whatever OBSTRUCTION they can without EVER actually taking any responsibility for their actions. In my view Mr Lush falls into this category. He is free to walk a mile in my shoes any time he likes. I don't somehow think it will happen as his ivory tower is way to high for my comment to reach him.

After seeing the mess and

After seeing the mess and stress caused by a member our family that contracted a Mental incapacity, my wife and I made sure we had LPA's for health and Financial affairs in place. We would not wish to inflict the same grief on each other, or our children and relatives. There will always be unscrupulous people and we can only do our best in selecting the best attorneys. Penalties of abusers of LPA's need to be so severe as to deter the people without conscience.

My Sister in Law , who is in

My Sister in Law , who is in a care home and has dementia , has given power of attorney to a woman who used to give her a massage once a week and is not related in any way shape or form . I believe that she was coersed
into giving this woman power of attorney. I have been told that I cannot contest this until my sister in law dies.

I agree with the Judge. At

I agree with the Judge. At the least have two different attorneys appointed who are not directly linked together (i.e. not a husband and wife). For myself, I still have an enduring power roof attorney in force and intend to keep that in existence. It's not the same but does what I want. Costs nothing and I can end it simply at any time I want. Pity I can't change it.

The whole business of wills and looking after your affairs at the end of your life should be simplified instead of being a lawyers domain and source of revenue.

some yrs ago my solicitor ( a

some yrs ago my solicitor ( a friend now retired) done power of attorneys for my mother, myself and my wife, it was a god send when my mother rapidly became unable, however i now have the problem where i find myself unable to trust my son or his partner, however i do have total trust in my 2 daughters ( and their partners) if and when i or my wife become unable it will have to be 3 signatures on everything.

From personal experience, I

From personal experience, I consider that having Power of attorney for older parents, although unfortunately sometimes subject to abuse, is essential in today’s world. One significant reason is that more and more financial transactions are carried out on line. If the elderly do not have access to a computer or do not fully understand how to use one, they will continually require guidance when dealing with money matters. Hopefully, the comments made by judge Denzil Lush, which I am sure are valid, might trigger the introduction of a way of stopping family members taking advantage of us “oldies”. (Although a pensioner, hopefully I will not require Power of attorney for several years!)

Regards,

Dr Trevor Rising

Rachael Griffin needs to do

Rachael Griffin needs to do her homework. An unregistered LPA Can be registered by the attorneys in the event that the donor has lost mental capacity.
I work in a solicitors putting 3 or 4 of these in place a month. The advantage of the donor registering at the outset means the OPG may return with errors before it is too late to change, but although advised for this reason, its is not esential. To state that an LPA cannot be registered after the donor has lost capacity is simply wrong and for an aleged 'financial planning expert' to state this makes the mind boggle.