An Everlasting Power of Attorney?: Record levels of court action over lasting power of attorney

October 16, 2019

2 min read

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What's going on here?

According to data collected by Nockolds Solicitors, 721 applications were made to censure or remove attorneys in England and Wales in 2018/19 after an increase in people acting with power of attorney on behalf of vulnerable people.

What does this mean?

A lasting power of attorney (LPA) is a legal document which allows people (known as the “donor”) to appoint one or more people (known as the “attorneys”) to help make decisions on their behalf. The LPA comes into effect when the donor is no longer able or wants to make decisions for themselves. There are two types of LPA: one for health and welfare, the other for property and financial affairs. 

The figures have more than doubled over the past two years. The England and Wales Office of the Public Guardian (OPG) have continually applied for a rising number of court orders to  censure or remove attorneys since 2016/17, where 272 applications were submitted. This rose by 71% to a figure of 465 in 2017/18 which has since risen by 55% to the 2018/19 count of 721 applications. 

Alongside this, the OPG have launched approximately 3,000 safeguarding investigations into cases where the donor was at risk from their attorney during 2018/19. This was also a rise of 53% compared to 2017/18.

What's the big picture effect?

The continual rise in court action follows the safeguards introduced in 2017 which were “watered down” for a more simplified process. This has lead to many LPAs being created without professional advice. 

The safeguards allow LPAs to be registered once someone known to the donor certifies that the donor has not been unduly pressured to sign it, and understands the purpose and extent of authority of the LPA. However, the certifier was not required to have any relevant professional skills. 

The two main reasons behind the rise in court orders submitted by the OPG were:

  1. making improper gifts; and 
  2. the attorney not acting in the donor’s best interests. 

There has been a continual increase in applications for LPAs each year (6% in 2018/19), due to increasing numbers of those affected by a serious health condition such as dementia. However, the majority of misconduct by the attorney will not be noticed during the donor’s life, leaving the OPG with limited powers to identify inappropriate behaviour. 

Due to this, greater awareness and safeguards around financial abuse of vulnerable individuals is likely to be required to address this growing issue. The OPG have taken action on this by launching a new safeguarding strategy in April 2019. The strategy aims to protect donors and to work more closely with audit services and the NHS.

Report written by Heerim Hwang

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