Former Judge's take on LPAs misleading

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Power of Attorney orders are "wide open to abuse" according to a former judge.

A Lasting Power of Attorney (LPA) is a way of someone, usually elderly and vulnerable, handing decision-making over their welfare and finances to another person — in most cases a relative or a friend.

Lush claimed last week that one in eight of the 6,000 cases he dealt with during his time as a senior judge at London's Court of Protection involved abuse.

In one particularly odious example, a Dunkirk veteran suffering with dementia was persuaded to sign over LPA to a heartless neighbour who promptly helped himself to £9,000 from the octogenarian hero's savings.

According to the ex-judge just over 500 of these cases (around 68per cent) concerned an unscrupulous son or daughter taking advantage of their elderly parent.

Clearly abuse occurs, but that doesn't mean power of attorney orders are flawed in themselves.

Lush failed to point out that LPA cases only come up before a judge when things have gone wrong. The vast majority of cases — and there are more than 2.5million LPAs registered in England and Wales — have not involved any abuse whatsoever.

Legal expert Teressa McDonald points out that it's rather like a plumber who only works on broken washing machines saying all washing machines are useless because he only deals with the ones that are knackered.

Besides, without an LPA how would someone elderly and vulnerable protect themselves?

The only alternative is for them to seek the courts' authority to have someone become their "deputy" once they are incapable of looking after their own affairs.

This is the course of action Mr Lush prefers. But it is massively more expensive. An LPA order costs £582 — £500 on solicitors' fees and £82 in court costs. The deputy option costs nearly four times that sum — £1,200 on solicitors' fees, £400 on court fees, £320 a year on supervision and £300 (dropping to £200 a year after the first year) on insurance charges.

And insurance can cost more depending on the size of the estate involved.

So that's £2,200+ to start with, a price that the vast majority of pensioners simply could not afford.

If a vulnerable senior citizen hasn't got the money for that option and is dissuaded from going for the lower-priced LPA option because of interventions like this, then they will consequently become far more at risk because they will have nothing at all to protect them.

For example Times reader Paul Lang told the newspaper's Money section that his 82-year-old parents had lost more than £200,000 to a so-called "boiler room" scam (where fraudsters talk victims into buying shares in non-existent companies).

Mr Lang was unable to intervene because they had not set up an LPA.

Solicitor Alastair Collett described Denzil Lush's advice as "dangerous", adding that it could scare people away. "With the vast majority of LPAs there is no abuse," he said.

Other experts warn that as life expectancy increases so dementia continues to rise, meaning that people could be in real danger of exploitation if they don't register an LPA.

Since 2007, LPAs can only be set up if someone is of sound mind.

Mr Lush's intervention was well-meant I'm sure, and it will be a happy coincidence if the resulting publicity helps sell copies of the inch-thick legal tome he has written on the subject.

However, the way his position has been reported has presented a far more negative view of Lasting Power of Attorney than is justified by the facts and may regrettably put vulnerable elderly people at more risk.

Garry Bushell, August 2017

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