The use of large up-front fees and disproportionate deposits has already resulted in significant cost consequences for one care provider.
Having been the Judge of the Court of Protection for over 20 years, it is quite the condemnation of LPAs that have been increasingly advertised by the Ministry of Justice (through the Office of the Public Guardian) as a great solution for individuals to plan for their future.
Former Senior Judge Lush is certainly right to note that LPAs have a lack of safeguards that are, and have long been, inherent in the Court of Protection Deputyship system. This is where a Judge of the Court of Protection approves a person or people who are appointed as a Deputy to manage the affairs of a person who lacks the capacity to manage them themselves. The safeguards built into the Deputyship system include annual accounts having to be produced to the Office of the Public Guardian and an insurance bond to be paid for and put in place, which will pay out immediately if there are issues with the action taken by the appointed Deputy.
Proper advice can save the day!
Careful legal advice to the person creating an LPA could address many of the risks that Mr Lush sets out.
The Ministry of Justice and the Office of the Public Guardian have conducted a massive marketing campaign particularly aimed at people undertaking a ‘DIY’ approach to the preparation of LPAs – whilst empowering people and encouraging them to think about their future and needs, there is no substitute for careful legal advice tailored to individual circumstances.
For instance, legal advice can ensure a Donor considers whether somebody should be notified about them creating the LPA - ensuring that the donor has independently considered their position and is not subject to any influence.
Furthermore, some of the protections afforded to deputies could be incorporated into the conditions and requirements a Donor places on their Attorneys - e.g. a requirement for the attorneys to file annual accounts with an independent person such as an accountant, solicitor or other professional.
The important thing is not to throw the baby out with the bath water – ensuring that each individual makes the appropriate choice for their unique circumstances and has the best possible advice is key.
For close-knit families, where there is agreement and no reason to suspect a family fallout will occur and appropriate safeguards, such as a requirement to keep named people informed of significant decisions, are included as appropriate, LPAs offer a valuable, immediate and cost-effective solution to the potential problem of the Donor losing capacity in the future.
For those who have complicated family relationships and want to ensure that other people they might trust more than their family can make decisions or to be involved in decision-making for them, an LPA could be vital in providing peace of mind and ensuring that a person they want to help them and trust to do so can, whenever that might be necessary.
The best-laid plans
Unfortunately, in every walk of life, whether attorneys, deputies or just close friends lending a hand, there is always an opportunity for an unscrupulous person to find ways in which they can inflict pain on another person – whether through draining their account or simply not looking after them.
The key message is for people to take appropriate advice and to safeguard themselves as much as anybody possibly can against foreseeable but potentially catastrophic things happening – and the right solution for each person will be different. As with so many things in life, one size does not fit all.
The government announced on 16 May that it will provide a fund of £400m to cover the costs of removal and replacement of cladding to high rise residential blocks which have failed tests.
Whilst some people are under the impression that preparing a Lasting Power of Attorney (LPA) is simply a case of completing a form and ticking a few boxes, it is about far more than this.
A big fear for some people facing divorce and the inevitable carving up of the matrimonial assets. They seek assurances that such assets will be “ring-fenced” and retained for them.
Thinking about the legal status of being a cohabitant probably isn’t at the top of the ‘to do’ list.
When an individual is thinking about making a gift to another individual, consideration needs to be given to the Potentially Exempt Transfer (PET) trap.
We are now only a few weeks away from the biggest change to data protection laws in over 20 years. Are you compliant?
The tragedy, in this case, is that there were options readily available to the midwives that they could have used. This was not a case of having to go above and beyond.
Arising from the recent Family Division announcement, people who think they are legally divorced may in fact still be married.
The SCCS has issued providers in the scheme a series of updated and new documents in order to assist with their National Minimum Wage review.
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