Legal Services Guild responds to the Judge Lush stance on LPAs
Senior Judge Lush is the most respected Judge in the Court of Protection and many of the guidelines we operate under have been as a result of his judgements; we should heed what he is saying. Judge Lush is absolutely right to echo the words of financial journalists as they highlight the dangers of misguided appointments of attorneys. The devastation the wrong choice can cause to a family and the assets of a vulnerable person can impact and scar deeper than financial theft alone.
However, it would be unwise to look at his comments without putting some context around them.
Firstly, according to the OPG, there are over 2.4 million LPAs that are registered. To deal with 6,000 cases is roughly 4% of that total (I appreciate that not all are active, but you get my point – the number he has dealt with is tiny in proportion).
Secondly, there are no statistics available as to the huge amount of good work undertaken by attorneys on behalf of family members.
Thirdly, it cannot be beneficial to a family to have a court appointed deputy who will be unknown to the family, who will have no grasp of the family politics or indeed the wishes of the person who has lost capacity.
Picking the wrong person as an attorney seems to be the nub of the issue, not necessarily the fact that a donor can appoint an attorney. Self-service without help and guidance seems to be creating risk where it is not welcome and it seems that it is this risk that greatly heightens the potential for corruption and coercion.
Perhaps then, instead of focusing on the LPA itself, we should be focusing on the choice of attorney and who is registering the LPAs. As a profession, if we were spending time and resource educating other professional and the public of the pitfalls, the benefits and the choices they have when it comes to engaging someone else to look after their affairs should they lose capacity, then this risk would surely be mitigated significantly without removing freewill and choice from people.
Online registration has got to be an area where an errant would be attorney can pass under the radar. Making the person to be told optional is another relaxation of the rules that would make it easier for an attorney that has unduly influenced a donor to simply get the document registered.
There should be a tightening of the rules around how an LPA is registered – not loosening. If people had safe and trusted access to an adviser, one who is trained and accredited to help a donor make a wise choice of attorney, we could surely vastly diminish the reported heartrending cases that are, thankfully, not a common as instances of good people doing the right thing for the donors.
Dealing with problem attorneys day in, day out will undoubtedly give you a firm (but jaundice ) opinion as to the value of LPAs. However, lets not throw the baby out with the bath water by undermining not only their usefulness, but also the vast amount of important decision made by family members under an LPA.
This article was submitted to be published by Legal Services Guild as part of their advertising agreement with Today’s Wills & Probate. The views expressed in this article are those of the submitter and not those of Today’s Wills & Probate.