Lasting Powers of Attorney – what now?

In common with many in the legal profession, I was interested to read the views expressed by recently retired Senior Judge Lush on Lasting Powers of Attorney (LPAs). Specifically, he said that he would never make one himself. Those views certainly caught the attention of the media – the story was all over the BBC following that radio interview and, of course, we lawyers were called to respond. One of my colleagues had two clients telephone with real concerns as to whether or not to complete their LPAs.

Naturally, there is a strong temptation simply to dismiss the points being made as being those of a person who now has a book to sell. Was he not bound to give a provocative sound bite or two? Whereas I do think that’s too simplistic a response and I also think that, as practitioners, we are missing a trick if we fail to heed what Mr Lush is saying I would like to spend a moment considering the strange places one can be taken if the logical journey between cause and effect is not followed correctly. The press coverage of Mr Lush’s comments reminded me of an A-Level economics lesson on precisely this point.

So what is the trap?

Generally, if a maths teacher tells a class that all users of hard drugs start off on soft drugs and then asks the class what maths lesson there is for legislators in terms of soft drugs, most students will say that, since we know from the initial statement that 100% of hard drug users started on soft drugs, we ought not to decriminalise soft drug use. This is of course completely wrong mathematically.

The correct answer is that the statement that all hard drug users start off on soft drugs gives no information of value in deciding policy on soft drugs.

Instead, the statistic you need is the one which tells you how many people who have used soft drugs at some point go on to use hard drugs.

If there were a population of 1,000,000 people and if 5 of those people used hard drugs and if all of those 5 started out on soft drugs, you would say that 100% of hard drug users started out on soft drugs. If, however, 500,000 members of that population use soft drugs and 499,995 of them never go on to use hard drugs then the causal link between the two would be statistically irrelevant. I am not pretending for a moment to know anything about drugs and the numbers here are deliberately extreme to make clear the underlying mathematical point. Numbers, used incorrectly, are a hindrance.

Has Mr Lush fallen into this trap?

Possibly. I would not be so bold as to put it any more strongly than that but if a top judge spends most of his career dealing with the fallout of misused LPAs, he is bound to see a lot of misused LPAs and so he becomes mistrustful of them. The useful statistic here is not how many LPAs go wrong, it is what proportion of the total number of LPAs made go seriously wrong. Let us not forget that it is likely to be those that went most seriously wrong which ended up in the court of the most senior judge and this is bound to leave some kind of emotional resonance.

So what lessons am I taking from Mr Lush’s comments?

In common with most other practitioners, I wish Mr Lush had not scared the public away from what is usually a very valuable tool. Of course, if you grant unlimited authority to someone you hardly know, you are asking for trouble. Mr Lush’s radio interview was a response piece to an interview with the family of an elderly man who granted an LPA to a neighbour. The neighbour proceeded to steal nearly everything this gentleman had. The outcome was tragic but it was not unpredictable and let’s not equate that to the person who appoints known, trusted individuals who have the skills, the time and the inclination to use an LPA in the genuine best interests of the Donor. Aren’t there far more LPAs being created in those circumstances than in favour of rogues?

That being said, the interview was a useful reminder that LPAs are not a universal panacea. If someone comes in wanting to make an LPA in favour of someone they do not appear to know well, it really is worth taking the time to ask a lot more questions and to query whether a Deputyship might actually be a better solution. If your only source of help is someone less known to you, better that they be appointed with limited powers, supervised by the court and backed by an insurance bond. This is not new thinking, it’s just helpful to be reminded of it from time to time.

Moreover, a lot of the problems which arise under LPAs do not stem from wilful abuse of an attorney’s position. Often the problems stem from misuse by people who try to do the right thing – e.g. people who think they are supposed to put all of the Donor’s assets into the attorneys’ names now that they are managing things. Lawyers can do a lot to help by producing fact sheets – the ‘dos and don’ts of being an attorney’ and sending these to the attorneys when we send them the forms for signature. If people genuinely want to do the right thing, we can point them in the proper direction.

All of this is a reminder that LPAs are powerful documents, not to be entered into lightly or ill-advisedly and (in my view) certainly not to be completed online by people who don’t know what they are doing. If only Mr Lush had given as his clear take away message that LPAs are useful but that professional advice should be sought and that people should expect to pay for that advice. I think that a lot more good would have flowed from that message.

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