Lasting Powers of Attorney – would additional safeguards prevent fraud?

News Article

New proposals are being put forward which could provide additional safeguards during the process of putting in place a Lasting Power of Attorney.

Westminster think tank, Demos and counter-fraud network, Cifas claim additional safeguards such as the creation of a register of active powers, which could then be updated in real time, would provide added protection against fraudsters.

The proposals also suggest a greater sharing of intelligence, as well as credit and criminal record checks before an individual can be appointed as an Attorney.

Latest figures from the Office of the Public Guardian, which oversees power of attorney, show that 5,245 safeguarding referrals were received and, of these, 1,886 were accepted for further investigation.

The joint authors of the proposals, Andrew Gload and Polly Mackenzie, commented: “Power of attorney is seen as a blanket operation, where the attorney takes over someone’s affairs once they lose capacity. This is not in keeping with the reality of capacity, which is decision-specific, and often fluctuating.’

Former Home Office security minister Ben Wallace MP, confirmed that he has asked for the issue to be raised with the Office of the Public Guardian.

Tim Steele is a Partner with Palmers, who specialises in Lasting Powers of Attorney and legal matters relating to older clients. He said:  “LPAs are neither inherently good nor bad. They can be of great assistance if used correctly and very dangerous if not.

“Providing the necessary existing safeguards are carried out, an LPA can be a positive and effective legal tool, which ensures your wishes are respected should you ever lose capacity but there is a clear need for professional advice when considering creating powerful legal documents of this nature.”

Solicitors for the Elderly, (SFE) an independent, national organisation of over 1,500 lawyers provides specialist legal advice for older and vulnerable people.

The group has been campaigning to ensure essential checks and controls are conducted when making an LPA.

Here are SFE’s 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 can’t 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.
  • 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 – 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 LPA 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 an LPA is effective, legally robust and safe.
  • Keep your plans current – Make sure you keep your LPA 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.

For expert advice on Lasting Powers of Attorney, please contact us.