Denzil Lush highlights dangers of DIY Lasting Powers of Attorney

Private client practitioners would have choked on their toast and marmalade if they were listening to BBC Radio 4’s Today programme on 15th August. Interviewed by Justin Webb, retired Senior Judge of the Court of Protection, Denzil Lush, declared that he would refuse to sign a Lasting Power of Attorney (LPA) and went on to accuse the Ministry of Justice of being “disingenuous” in promoting the creation of Lasting Powers of Attorney. As life expectancy lengthens and with increasing cases of dementia, these remarks might be perceived to be unhelpful.

Inevitably, during his nineteen years as senior judge at the Court of Protection, Denzil Lush adjudicated in a number of cases, which served to highlight some of ways in which vulnerable members of society can be subject to financial, physical and emotional abuse. Mr Lush heard 6,000 power of attorney cases, however, Office of the Public Guardian statistics show that more than 2.5 million LPAs have been registered.

Mr Lush’s comments, however, are useful in that they highlight both the importance of LPAs and ensuring the right safeguards are in place. In recent years, the Ministry of Justice, with the introduction of the online service to allow people to create and register with the Office of the Public Guardian (OPG) their own LPA, have perhaps loosened the safeguards, which were envisaged by the Mental Capacity Act 2005. The OPG has recently set a target of 30% of applications to be made via the online platform. In my view, it was a mistake to dispense with the need to notify a third party when a LPA is being registered. It may also be appropriate for the Ministry of Justice to review whether the ability to provide the certificate should be restricted to suitably qualified persons.

However, as Solicitors for the Elderly state in their report ‘The Hidden Cost of DIY LPAs’, the drive to create LPAs online exposes people to unacceptable levels of risk and in doing so may be compromising the OPG’s ability to safeguard those who are most vulnerable.

As with DIY Wills, there is a danger with DIY LPAs that a document is produced which may not be legally robust or may incorporate mistakes. If the mistakes are identified by the OPG, the forms will need to be resubmitted to the OPG incurring a repeat registration fee. Alternatively, the mistakes may not be identified until a later date when banks, utility providers or medical institutions may reject the LPA. Between 1st August 2015 and 31st August 2016, there were over 13,000 LPAs lodged with the OPG with a rejected status.

Creating an LPA using a DIY method can also significantly increase the risk that the donor becoming a victim of fraud or coercion. There are two ways in which this could happen – either by a donor being pressured to sign or agree to something that they do not understand or are not comfortable with, or by a fraudulent LPA being registered in a donor’s name without their consent. The number of safeguarding referrals received by the OPG has been steadily increasing, yet at the same time the OPG seem intent on creating online platforms for the creation of LPAs, which could be subject to abuse. The prospect of a fully digital ‘e-LPA’ should cause concern.

Denzil Lush’s comments, however, are a reminder that a specialist solicitor can ensure that an LPA application is completed correctly, and that there is no scope for misunderstanding on the part of either the donor or the attorneys. A suitably qualified solicitor also acts as an important safeguard against fraud and coercion, ensuring that the donor is fully aware of and comfortable with they are signing.

Roger Crouch is an associate solicitor and fully accredited member of Solicitors for the Elderly with Moore Blatch LLP at their Richmond office. Moore Blatch LLP have offices in Lymington, Southampton, the City of London and Richmond. Roger can be contacted on roger.crouch@mooreblatch.com and 020 8744 0766.