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A Lasting Power of Attorney- make sure its your choice
Lasting Powers of Attorney
You may have come across recent comments by the retired Court of Protection Judge, Denzil Lush, regarding Lasting Powers of Attorney, the potential risks of abuse by those appointed in a Lasting Power of Attorney and his preference for individuals instead to use the Court of Protection process of appointing someone to manage an individual’s affairs.
A Lasting Power of Attorney appoints individuals of your choice ( ‘attorneys’) to manage your property and financial affairs if you become physically or mentally incapable of doing so yourself. You can also appoint attorneys to make decisions about your health and welfare if you lose mental capacity. Lasting Powers of Attorney must be registered with the Court of Protection before they can be used.
Where an individual has not made a Lasting Power of Attorney and they lose mental capacity to manage their affairs, an application can be made to the Court of Protection for someone to become their ‘deputy’, who will then manage their affairs on their behalf. The person applying to be the individual’s deputy however, may not be a person they would want to manage their affairs, the process is a more costly and time consuming process and ongoing contact with the Court of Protection is required. There can also be delays in the deputy managing your affairs until the Court of Protection appoints them, as there is a lengthy application process for them to go through.
An attorney or deputy must always act in the best interests of the individual they are appointed to act for and they must follow the Code of Practice in the Mental Capacity Act 2005. If they do not and the attorney or deputy abuses their position, the Court of Protection can step in to remove them. Abuse of power can therefore be an issue whether a deputy or an attorney is appointed.
Our view is that the preferable route is to make a plan for what will happen if you lose physical or mental capacity by appointing attorneys of your choice, whom you trust, in a Lasting Power of Attorney to manage your affairs if you are unable to do so yourself. Everything is then in place and ready to be used to help you if anything should happen.
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