A response to the comments made by Denzil Lush on LPAs

Luke Smyth of Smith Partnership has defended Lasting Powers of Attorney after Denzil Lush, the former Senior Judge of the Court of Protection, warned they may leave elderly people open to abuse.

A Lasting Power of Attorney is a powerful legal document that allows a person to appoint trusted individuals to make important decisions about care and finances on their behalf, in the event of a loss of mental capacity through an accident or illness such as dementia.

In the foreword to a new book on the subject, Mr Lush raised concerns about the “lack of transparency” in how appointed attorneys manage older people’s finances. The former judge went on to criticise the Ministry of Justice as being “disingenuous” in its promotion of the legal document.

However, Luke Smyth - a member of national organisation Solicitors for the Elderly - said Lasting Powers of Attorney are effective safeguards when created responsibly:

“Senior Judge Lush’s comments have given rise to fears that Lasting Powers of Attorney are a direct avenue for financial abuse. However, his comments must be put into context, as his 20-year career at the Court of Protection will have presented him with the very worst cases of financial abuse.

“A Lasting Power of Attorney can be a positive and effective legal tool, which ensures your wishes are respected should you ever lose capacity. Senior Judge Lush’s comments should highlight the clear need for professional advice when considering powerful legal documents of this nature.”

Solicitors for the Elderly is an independent, national organisation of over 1,500 lawyers specialising in giving legal advice for older and vulnerable people. Solicitors for the Elderly have been campaigning to ensure essential checks and controls are conducted when making a Lasting Power of Attorney.

Here are their top tips to ensure your Lasting Power of Attorney is effective, legally robust and safe:

Plan early – While you have capacity, it’s vital that you get your affairs in order and choose the best people to manage your affairs, in case of an accident or illness. You cannot appoint an attorney once you lose capacity.

Choose carefully – Think carefully who you want to appoint as your attorney and have an open conversation with them so they understand your wishes and what their responsibilities will include. Consider appointing more than one person as your attorney so they can share the responsibility.

Consider appointing a professional – A family member might not always be the best person to act as your attorney. Instead, you can appoint a professional such as a solicitor. They can act as a neutral third party and make unbiased decisions that are in your best interests. Bear in mind this usually involves a cost.

Think about different circumstances – Consider how you would like your attorney to manage your property and financial affairs in different situations. For example, are you happy for your property to be sold to pay for your care costs?

Address the difficult questions now – Your attorney might have to make difficult decisions about your health and welfare. If you have specific wishes around your care plans, medical treatment, or end of life wishes, make sure you discuss this with them and make your choices clear in your document.

Seek professional advice – Shop-bought and online Lasting Power of Attorney kits may be suitable for those with very straightforward financial situations or with considerable legal experience, but for most people, seeking professional legal advice is the best way of ensuring that a Lasting Power of Attorney is effective, legally robust and safe.

Keep your plans current – Make sure you keep your Lasting Power of Attorney updated if your circumstances change. Your choices around the people you want to be responsible for your finances and wellbeing may change, such as following a marriage or divorce, when children reach adulthood, or if parents pass away.

To find out more about LPAs please contact Luke Smyth at Smith Partnership on 01332 225335.