Associate Margaret Windram Weighs In On Topic

Irwin Mitchell Private Wealth has reacted to the comments made by retired Senior Judge Denzil Lush today on BBC Radio 4 yesterday morning (15th August), stating that those considering lasting power of attorneys should be more aware of the risks and that he has vowed to never sign one himself, instead promoting deputyships as a preferred method.

The benefit of a lasting power of attorney is that it is created by the person whilst they still have capacity and therefore their choice of attorneys.  It is very important that they choose someone, or more than one attorney, whom they trust absolutely, as the attorney can do everything with their assets that they would be able to do. In contrast, a deputyship is applied for once the person loses capacity so they have no say in who is appointed.

Expert Opinion

“Denzil Lush is a well-respected, recently retired Senior Judge in the Court of Protection who adjudicated on 6,000 power of attorney cases, and who should be listened to for his experience and common sense.

“He focuses on the Power of Attorneys – EPAs and LPAs – that go wrong and where such powers are abused. However, there are many positives to these arrangements. LPAs allow people to choose who will have power over their affairs, which in many cases give reassurance and confidence in case the need for help arises. There are two forms of LPAs and different options in each document that tailor the experience for those applying, such as including options to have two or more attorneys and whether they can act alone or must act together. There are special situations to consider if there is a jointly owned property or there are investments managed (or which might need to be looked after) by a discretionary fund manager.

“LPAs should not be taken lightly as they delegate major powers and can be misused. Be careful about doing LPAs online, without advice, where there is much greater risk and potential for abuse. A solicitor can help both to ensure that the person does have the necessary capacity to make an LPA and may be able to detect any undue influence.

“Deputyships are part of a valuable and necessary system, particularly to support survivors of serious personal injuries, but may not be required with a carefully considered LPA in place. Whichever choice is made, it’s crucial to have good legal advice on what powers the person in question would be giving away, so that they are fully understood, and who they are giving them to.” Margaret Windram - Senior Associate Solicitor