Are English and Welsh Powers of Attorney fit for purpose? - What more could be done to protect the vulnerable?

19 April 2018

A Power of Attorney is in its most basic form, a written agreement by which someone (commonly known as the donor, granter or principal) gives to another party (commonly known as the attorney or agent) the legal authority to make decisions and act on their behalf. It is the creation of a legal relationship of agency.

Many jurisdictions, including all of the parts of the UK, have introduced a form of Power of Attorney which commences on, or continues through, the donor's incapacity. In England and Wales such Powers of Attorney are known as Lasting Powers of Attorney ('LPA') or Enduring Powers of Attorney ('EPA' - the pre-2007 equivalent of the LPA).

Last year in England and Wales, almost 650,000 applications were made to the Office of the Public Guardian ('OPG') to register LPAs and EPAs and there are 2.5m LPAs and EPAs currently registered.

In the foreword to the soon to be published eighth edition to his book, Cretney & Lush on Lasting Powers of Attorney, the newly retired Senior Court of Protection Judge Denzil Lush, said that he has never made a LPA or an EPA. Perhaps by way of an explanation as to why, in August 2017, SJ Lush was interviewed on both Radio 4’s Today programme and BBC 2's Victoria Derbyshire Show, stating that, in his experience, one in eight LPAs resulted in the donor being subject to abuse. He went on to say that 90% of abusers were family members and of those 68% were a son or a daughter.

This article will summarise the current system of LPAs in England and Wales, and investigate the areas that are potentially open to the kind of abuse which SJ Lush highlights. The article will also seek to provide a comparison with the system in place in Scotland, and a variety of other jurisdictions, to assess whether anything can be done to improve the safeguards behind LPAs in England and Wales.

England and Wales: Lasting Powers of Attorney

There are two types of LPA in England and Wales; Property and Financial LPAs and Health and Welfare LPAs. Under a Property and Financial LPA (also known as an LPA for Financial Decisions), an attorney is granted the authority to deal with a donor's financial affairs and property, such as running the donor’s bank and savings accounts, making or selling investments, paying household bills and buying or selling the donor’s house. Under a Health and Welfare LPA (also known as an LPA for Health and Care Decisions) a donor gives an attorney the power to make decisions about his or her welfare, such as the type of health care and medical treatment the donor receives (including life-sustaining treatment), where the donor lives and day-to-day matters such as the donor’s diet and daily routine. Both types of LPA can be created using the self-explanatory pro-forma documentation available on the OPG website.

In the first two sections of the pro-forma documentation the donor gives details of themselves and their chosen attorney(s). Donors must be over the age of 18 and have the requisite mental capacity. Attorneys must be at least 18 years old and must have mental capacity to make the decisions for which powers are being granted. For property and financial LPAs attorneys must not be bankrupt or subject to a debt relief order.

In the third section of the form a donor states how he or she wants their attorneys to make decisions where more than one attorney is to be appointed.

Joint and several appointment is the option most commonly chosen because it is the most practical; attorneys can get together to make important decisions if they wish, but can make simple or urgent decisions on their own. In straightforward joint and several appointments it is up to the attorneys to choose when they act together or alone. A joint and several appointment also means that if one of the attorneys dies or can no longer act, the LPA will still work. If one attorney makes a decision, it has the same effect, in law, as if all the attorneys made that decision.

Some donors feel that they can build further protection into their LPA if they appoint multiple attorneys jointly rather than jointly and severally. Where attorneys are appointed jointly, all attorneys must agree unanimously on every decision, however big or small. The OPG advises that joint appointments can result in simple decisions being delayed because it can take time to get the attorneys together, and also points out that if attorneys cannot agree a decision, then they can only make that decision by going to court. A further pitfall with joint appointments is that if one attorney dies or can no longer act, the LPA fails unless a replacement attorney is appointed (see below re section four of the LPA).

Finally, attorneys can be appointed jointly for some decisions, jointly and severally for other decisions. If a donor chooses to appoint in this manner they must list the decisions that attorneys should make jointly and agree unanimously on Continuation sheet 2. Again, with this option, if one attorney dies or can no longer act, attorneys will not be able to make any of the decisions which have been listed on Continuation sheet 2 as those to be made jointly (which will often be the most important decisions in the eyes of the donor).

A donor can also appoint replacement attorneys in section four and in the LPA form, again, the donor must record their decision as to how they wish the appointment of their replacement attorneys to dovetail with the appointment of their original attorneys and, where multiple replacement attorneys, how they should make decisions.

In the fifth section of the form in relation to property and financial affairs, the attorney must note the decision that they have made as to when their attorneys should be able to act; attorneys can either make decisions as soon as the LPA has been registered by the Office of the Public Guardian or only when the donor has lost mental capacity. In most cases LPAs are registered immediately as holding onto an unregistered LPA brings with it the inherent risk that later, when the LPA is sent to be registered the OPG will find an irredeemable error with an LPA which means that it cannot be registered. In the worst case scenario an LPA cannot be re-executed because the adult does not have, by that point, the requisite capacity to grant a replacement LPA.

Section five of the form for Health and Welfare asks the donor to confirm their decision as to whether they wish their attorney to have the power to give or refuse consent to life-sustaining treatment on their behalf. Life-sustaining treatment means care, surgery, medicine or other help from doctors that is needed to keep the donor alive, for example a serious operation, such as a heart bypass or organ transplant, cancer treatment or artificial nutrition or hydration (food or water given other than by mouth).

It should be noted at this point that the starting point of the system in regard to both types of LPA in England and Wales (with the exception of scope of powers to make gifts, and the power to consent or refuse life sustaining treatment in the Health and Welfare LPA) is that the powers granted to the attorney are unlimited (whatever the donor could have done for themselves) within the scope of the LPA as standard but that a donor can add preferences or instructions should they wish to restrict the powers of their attorneys in some way.

In the sixth section of the LPA form, donors can elect to let people know if and when their LPA is sent to be registered with the OPG. Anyone who is 'notified' can raise any concerns they have about the LPA – for example, concerns that the donor was under pressure or there was fraud in the making of it.

In the seventh section of the LPA a donor can tell their attorneys how they would prefer them to make decisions, or give them specific instructions which they must follow when making decisions. Although, as explained above, the basic starting point is that the powers granted to the donor are unlimited, it is the case that since the inception of LPAs in 2007, it has become a requirement to include certain powers expressly it has been determined that these powers are not granted unless expressly included. These powers include the power of professional attorneys to charge fees and for the power of attorneys to be able to use discretionary management schemes for investments. It used to be the case that for attorneys to be able to access a donor's Will (and other testamentary wishes) the power had to be expressly included in LPAs, but this has now been superseded by the Law Society of England and Wales’ Practice Note on Access and disclosure of an incapacitated person’s Will.

Most donors completing LPAs for themselves, or with the assistance of lay representatives, will leave section 7 of the LPA form blank, as including preferences and instructions can delay the registration of an LPA and the OPG must refuse to register an LPA which contains any preference or instruction that is considered unworkable in practice. This is only the third section of the LPA form where, in the margin of the form, there is indication that obtaining legal assistance might be advisable (the other two instances being in the margins of sections three and four (how multiple and or replacement attorneys should act).

The eighth section of the LPA contains a summary of the attorney’s duties towards the donor under the MCA.

  1. Attorneys must always act in the donor’s best interests.
  2. Attorneys must assume that the donor can make their own decisions unless it is established that they cannot do so. 
  3. Attorneys must help a donor to make as many of their own decisions as they can; they must take all practical steps to help the donor make a decision and can only treat a donor as unable to make a decision if they have not succeeded in helping the donor make a decision through those steps. 
  4. Attorneys must not treat the donor as unable to make a decision simply because the donor makes or might make an unwise decision. 
  5. Attorneys must act and make decisions in the donor’s best interests when the donor is unable to make a particular decision. 
  6. Before attorneys make a decision or act on the donor’s behalf, they must consider whether they can make the decision or act in a way that is less restrictive of the donor’s rights and freedom but still achieves the purpose. 

In the same section, attorneys are directed that they must have regard to the Code of Practice applicable to attorneys which is also available online.

In section nine of the LPA the donor confirms (by signing in front of a witness) that they have read the LPA and give their attorney(s) the authority conferred on them by the LPA and the provisions of the Mental Capacity Act 2005. The donor must sign the LPA in section nine (along with making their decision regarding life sustaining treatment in section five of the Health and Welfare LPA) and any continuation sheets before the attorney signs and before the certificate is completed (see section ten below). There is special provision where the donor cannot sign.

Section ten of the LPA contains a declaration which is signed in by a ‘certificate provider’. The certificate provider should be either someone who has known the donor personally for at least two years, such as a friend, neighbour, colleague or former colleague or someone with relevant professional skills, such as the donor’s GP, a healthcare professional or a solicitor.

A certificate provider cannot be one of the attorneys or replacement attorneys named in the LPA (or any other LPA or EPA for the donor), a member of the donor’s family or of one of the attorneys’ families (including husbands, wives, civil partners, in-laws and step-relatives). In addition, a certificate provider cannot be an unmarried partner, boyfriend or girlfriend of either the donor or one of the attorneys (whether or not they live at the same address) or the donor’s or an attorney’s business partner, the donor’s or an attorney’s employee or an owner, manager, director or employee of a care home where the donor lives.

A certificate provider can witness the signatures of the donor and the attorney(s) and can also be a person that the donor wishes to notify when his or her LPA is registered with the OPG. The certificate provider signs to confirm, firstly, that they have discussed the LPA with the donor and that the donor understands the nature and effect of the LPA. Secondly, the certificate provider is confirming by their signature that the donor is not under undue influence or duress and that there has been no fraud. The certificate provider must sign after the donor but the certificate can (and ideally would) be signed on the same day as the donor signs (and if both signatures do not take place on the same date then the certificate should be completed as soon as possible after as the certificate provider’s assessment should be as at the time the donor signs.

Witnesses, for the purposes of sections nine (and eleven as detailed below), must be over the age of 18 years and cannot be an attorney, replacement attorney or, in the case of a Property and Financial LPA, an employee of a trust corporation that is an attorney or replacement attorney.

In section eleven, attorneys must sign to confirm (by signing in front of a witness) that they are aged 18 or over, have read the LPA in full (or had it read to them), understand that they have a duty to act based on the principles of the MCA and to have regard to the MCA Code of Practice, they must make decisions and act in the best interests of the donor, must take into account any instructions or preferences set out in this LPA and that they can make decisions and act only when this LPA has been registered.

An LPA has to be registered with the OPG before it can be used and this is dealt with in section eleven of the form. Either the donor or an attorney can register an LPA. The donor can register an LPA while they have the capacity to do so whereas attorneys can register an LPA at any time.

Once registered, a Property and Financial LPA can be brought into use (subject to section five of the LPA, see above) whilst a donor has full capacity but needs assistance with managing their property or their financial affairs. In contrast, a Health and Welfare LPA only takes effect if a donor lacks the capacity to make a relevant decision. In the case of Health and Welfare LPAs, once active, an attorney has a duty to notify people involved in the donor’s care including friends and family, the donor’s doctor and other healthcare staff and the donor’s care workers, social worker and other social care staff.

Although the OPG and the Ministry of Justice stress that LPA forms can be completed without any legal assistance (with the possible exception of multiple/replacement attorneys and preferences/instructions), if a professional is engaged to draft the forms then fees will likely cost the donor upwards of £600 + VAT in fees for one LPA and £800 + VAT for two LPAs. The registration fee payable to the OPG is £82 per LPA.

SJ Lush’s main concerns with the current system of LPAs as described above as is that, a perceived lack of accountability, supervision and security. In the forward to his new book SJ Lush details the reasons why he has more confidence in Deputyships; the default position where no LPA exists and the court appoints someone to act for an adult who does not have capacity to make decisions for themselves.

SJ Lush did, however, state in his interview on the Victoria Derbyshire show that he thought that the system of LPAs in England and Wales could be improved and suggested that attorneys could be required to obtain insurance bonds (akin to those which are mandatory in Deputyship appointments) and/or by requiring attorneys to produce annual accounts for perusal by the OPG.

The next section of this article investigates whether additional safeguards can be adopted into the system in England and Wales from the system in Scotland and other jurisdictions which might be an alternative to improve LPAs in England and Wales without converting them into the quasi-Deputyship as proposed by SJ Lush.

Necessary safeguards

In jurisdictions where Powers of Attorney have been introduced which commence on or continue when the donor loses capacity, specific characteristics have been developed and refined with regard to the need to protect the donor against abuse.

The nature and extent of safeguards differ from jurisdiction to jurisdiction but four core areas which require controls and safeguards are agreed to be:

  1. there must be sufficient evidence that such a Power of Attorney has been granted.
  2. the donor must fully understand the implications of granting such a Power of Attorney.
  3. it must be ensured that the donor has capacity when granting the Power of Attorney and the donor must be protected against fraud and undue influence when signing. 
  4. there must be mechanisms in place to deal with risk of mismanagement (whether negligent or fraudulent) by the attorney after the donor has become incapacitated.

Evidence that a Power of Attorney has been granted

In terms of evidence that a Power of Attorney has been granted, the system in England and Wales is strong. As there is one set form for each type of LPA, there is no mistaking an LPA for any other deed (including a General Power of Attorney). In addition, as all LPAs need to be registered with the OPG before they can be used, this is an additional safeguard in this core area.

The donor must fully understand the implications of granting a Power of Attorney

The OPG appears to encourage individuals to fill in the forms to create an LPA themselves. The rationale for this is so not to deter people from making a LPA for fear of incurring legal fees. Whilst this is a good idea in practice, the reality is that many people do not seek legal advice about any aspect of setting up, what is, in reality an important legal document.

The risks with limited understanding by the donor and their attorney range from, at one end of the spectrum, criminality in terms of the risk of fraud and theft to the other end of the spectrum, errors caused by 'naïve incompetence'.

The Law Society of England and Wales's practice note on LPAs dated 8 September 2011 states, that where solicitors are to advise in relation to LPAs, the risks are expressly outlined to clients; “You should, when advising clients of the benefits of LPAs, also advise them of the risk of abuse, particularly the risk that the attorney could misuse the power. You should discuss with the donor appropriate measures to safeguard against the LPA being misused or exploited”.  

At the 'naive incompetence' end of the scale, where donor’s do not take legal advice and, therefore, are not guided through the process to the most important sections of the forms and ancillary materials, it is arguably more likely that LPAs are put in place where donors (attorneys and certificate providers) are not fully aware of their roles and duties. Further, as explained above, those that do not take legal advice are more likely to create LPAs with unlimited powers for fear of inserting preferences and instructions which may be deemed unworkable. 

In Scotland, legal involvement in setting up the equivalent of an LPA is almost inevitable. Firstly, this is because the starting point for the two Scottish Powers of Attorney (known as Continuing (the equivalent of Property and Financial) and Welfare) is that the Power of Attorney must include a list of the powers that the granter (equivalent of 'donor') is to confer. 

The Scottish Office of the Public Guardian ('Scottish OPG') does not provide a pro-forma or precedent for either Power of Attorney. Given that few lay granters and attorneys would not know where to start in compiling a list of powers likely to be required at the outset of the relationship, the first step for a potential granter in Scotland is usually to find a solicitor.

While the Scottish OPG does not actively encourage the use of solicitors to draw up Powers of Attorney, the tone and stance in their guidance and on their website is subtly different to that in England and Wales. For example, guidance on the Scottish OPG website states under the heading “The Power of Attorney Document”, “You will need to arrange for your own Power of Attorney to be drafted. Most solicitors should be able to assist you to draft a Power of Attorney and provide legal advice. Alternatively, other companies and stationery shops sell Power of Attorney packs…. The drafting of your Power of Attorney is important as the wording of the document will be open to interpretation. A legal adviser will be able to provide advice if further information is required or your circumstances are complex."  In England and Wales in its leaflet entitled 'Make and Register an LPA', the wording states of the OPG states “You don’t need a lawyer to make an LPA, unless you have unusual or specific requirements… Sections in the LPA form where you might want legal advice are marked with this lawyer symbol [   ].  It’s up to you to decide whether you want legal advice to fill in these sections”.  This difference in tone is undoubtedly important.

Whilst it is not argued that the having legal advice when setting up a Power of Attorney guarantees that granters/donors and their attorneys will be fully informed as to every area of the system, it is argued that anyone who has taken legal advice and paid for bespoke deeds to be prepared is likely to be more informed than those who have used the internet to complete pro-forma forms. It is certainly more likely that when legal advice has been obtained from the outset an attorney or donor/granter that retains capacity has a first point of contact for resolving any questions that may arise during running of a power of attorney whereas, if no legal advice had been sought, attorneys and donors may not be aware of the information and advice that is available to assist them and how they can access it.

It must be ensured that the donor has capacity when granting the Power of Attorney and the donor must be protected against fraud and undue influence when signing. 

As has been seen, under the current system in England and Wales, an LPA requires the inclusion of a certificate signed by a 'certificate provider' who can be someone who has known the donor for two years or someone with a professional skill, such as solicitor or a doctor. There is no requirement for the certificate provider to state in what capacity they are signing. As explained above, the certificate provider is confirming that they have discussed the LPA with the donor and that the donor understands the nature and effect of the LPA and that the donor is not under undue influence or duress and that there has been no fraud. The first half of what is being confirmed is basically that that the donor has capacity and the second half, that the LPA is immune from challenge. Whilst a professional certificate provider such as a doctor, solicitor or barrister may understand the fundamental importance of such confirmations, it is arguably unlikely that a lay person (who has been chosen by the donor because that person has known the donor for two years) would.

In Scotland, certificate providers must be a solicitor, doctor or advocate (the Scottish equivalent of a barrister). Although not all solicitors, doctors or advocates will be experts in matters of capacity, undue influence, duress and fraud, it is likely that they will be aware of the gravity and purpose of their role and will be aware of where to find further information if they feel they are not fully cognisant of the legal concepts of which they are being asked to provide their professional opinion. It is argued that in Scotland, because certificate providers must be professionals and should fully understand the nature and importance of their role, it is less likely in Scotland that Powers of Attorney will be created and registered where there are underlying questions of lack of capacity (at the time of putting the Power of Attorney in place) or where there has been undue influence, duress or fraud.

In the case of a lay person using a purchased standard template to set up a Scottish Power of Attorney it is also argued that the requirement for them to make an appointment with a legal professional or doctor (both of whom might well charge for the service) stops the process being purely a form filling exercise and also potentially, at least for some brings in a sense of formality or even, for some, ceremony or solemnity to the process, all of which is entirely missing from the system in England and Wales.

In England and Wales, up until July 2015, unless a donor elected to let at least one person to be notified when their LPA arrived with the OPG for registration, the donor needed to find a second certificate provider. When this requirement was removed the OPG stated on their website that the need for second certificate providers in these instances "was making it difficult for some people who wanted to make an LPA”. While it is arguable that neither the requirement to notify on registration nor the requirement for a second certificate provider were particularly good mechanisms for preventing undue influence, duress or fraud, it is unfortunate that these safeguards were removed without a replacement safeguard being put in place.

There must be mechanisms in place to deal with risk of mismanagement (whether negligent or fraudulent) by the attorney after the donor has become incapacitated.

In England and Wales, once a Power of Attorney has been registered, attorneys are liable to scrutiny by the OPG and accountable to the COP. The OPG can investigate and the COP can stop an attorney acting if the attorney has done something the LPA says they cannot do or has not done something the LPA has instructed them to do, the attorney has not been acting in the donor's best interest or has misused the donor's assets or made decisions to benefit themselves. Additional grounds for investigating and stopping an attorney acting are that the attorney has done something that goes against the donor's human or civil rights, the donor is not being treated well, that the donor made the LPA without having the requisite capacity or that the LPA was made under duress or undue influence. In addition, the common law of agency (as codified in the Mental Capacity Act and the Code of Practice) imposes a number of fiduciary duties on attorneys, including two that relate specifically to their accountability. First, an attorney is expected to keep, and be ready to produce at any point, correct accounts of all his dealings and transactions on the donor’s behalf, and secondly, the attorney has a duty to produce to the donor, or to anyone appointed by the donor, all books and documents he has relating to the donor’s affairs.

All systems of Power of Attorney are based on the trust between the individuals involved backed up by minimal intervention by public authorities or the state. That does not mean that the concept is fundamentally flawed but a case of balancing the need for safeguards, which generally mean state involvement in one form or another and autonomy and self-determination on the other.

In terms of state enforced safeguards, SJ Lush has suggested that attorneys might be required to provide annual accounts to the COP or put up a security bond to cover their attorneyship (the same or similar to that required of a Deputy). However this focuses on dealing with a problem that already exists (providing a mechanism for detecting financial abuse and providing a financial remedy once financial abuse has taken place) rather than trying to improve the necessary safeguards for preventing abuse of LPAs and donors in the first place (the first three core areas which require safeguards and controls).

SJ Lush seems to state that his proposed additional safeguards provide a deterrent effect and encourage donors to have confidence in the system, but it is arguable that this notion is unsound. If a potential donor has the thought process that their choice of attorney is acceptable (only or even partly) because they are to be accountable or under the supervision of a public authority or the state, or because there will be a remedy if it goes wrong, that should serve as a red light that here is insufficient trust between the parties for donor/attorney relationship to be entered.

If, on the other hand, a donor is quite satisfied with the trustworthiness of their potential attorney but is simply concerned about record keeping a donor can, under both systems include in their Power of Attorney a condition that their attorney must provide financial records or accounts to someone who is independent.

So what preventative measures can be adopted into the system in England and Wales which address the first three core areas for safeguarding (rather than those which could be applied to deal when a problem that has already occurred)?

Again, other jurisdictions have looked at this question and juggled with possible means of safeguarding and implement checks that are proportional to the problem being addressed and do not negatively impact on either the balance between simplicity and formality nor the balance between individual autonomy and state intervention.  

Risk warnings to be contained in standard forms 

SJ Lush states that he believes that one of the major problems with the system in England and Wales is that he considers that the OPG and the MOJ actively encourage the creation of LPAs but they do not highlight the problems with can occur when LPAs go wrong. It has already been highlighted that where solicitors are employed to give advice, they are under a duty to advise attorneys of the risk of abuse. One safeguard that some jurisdictions employ is to include warnings in their pro-forma Power of Attorney documents. This could be a simple and proportionate safeguard which could easily be incorporated in to LPAs in England and Wales without affecting the autonomy of the donor. An obvious place for such warnings would be in section 8 'Your legal rights and responsibilities'. Whether the safeguard would be of benefit to the donor would depend on whether or not they read or understood that warning, (but that is arguable of all information that is include in the pro-forma documents) and could be addressed by adding into the certificate a statement that the certificate provider confirms that the donor also understood the potential risks involved.  

Medically qualified professionals assessing capacity

Some jurisdictions require that a medical professional provide a medical certificate of capacity (i.e. there is a separation of the question of capacity from that of understanding of the nature and effect of the Power of Attorney in question and questions of duress and undue influence in setting up that Power of Attorney). Such a requirement could provide for a stronger test of capacity but arguments against such a safeguard include the concern that the medical profession would not be able to cope with this addition to their workloads (many GPs and consultants already being unwilling to be certificate providers under the current system). There is also an argument that capacity in this context is not a medical question and that medical professionals are not best placed to give opinions (such opinions being best sought from legal professionals).

If it is considered that the system of certificate providers could be improved in England and Wales, perhaps the more proportionate and effective solution could be implemented from the system in Scotland; where the attorney is given the choice of their certificate provider being either a solicitor, doctor or advocate. This addresses the potential burden of one set of professionals being nominated exclusively and also gives the attorney the choice of which set of professionals best serve their circumstances and needs (it is the case that in certain circumstances and with certain medical conditions a legally qualified person may be wary of giving an opinion on capacity or an attorney may feel that a medically trained certificate provider will be best placed to give an opinion).

More formal execution formalities

In some jurisdictions, the same execution formalities that are required for wills also apply to Powers of Attorney. In England and Wales, this would mean an LPA would require a second witness (to the donor’s signature) to be validly executed. The need for a second witness for LPAs could be incorporated into the current system in England and Wales without much difficulty but it is unclear as to whether this would, of itself, act as a safeguard. It would be possible to require that certain classes of people be excluded from acting as a second witness (for example all relatives of the donor or attorney) or to require a witness to be from a certain class of people (a police officer, lawyer, officer of the court or notary public). Certainly the latter would serve to authenticate the signature of the donor when the attorney presented the Power of Attorney to a third party but this may be more of a benefit to third parties dealing on behalf of the attorney than a safeguard for the donor.

Trigger events

As has already been noted, an attorney can provide in section 5 of a Property and Financial LPA that they wish their attorneys to act only when they have lost mental capacity. Other jurisdictions have mandatory 'trigger events'. Under the system of EPAs, a donor is required to register an EPA as soon as the donor starts to lose mental capacity (the 'trigger event'. Attorneys must also (concurrently) serve notice on specified persons to give those specified persons a chance to object to the registration or raise concerns. Serving notice to third parties is also a standalone safeguard in some jurisdictions. Arguments against 'trigger events' are that determining whether there has been a trigger event can cause a delay at a critical time (e.g. if capacity must be determined by a medical practitioner (as is often the case)) and can result in an intrusion into the rights of the donor. Such requirements also do not take into account the fact that the loss of capacity is rarely an 'on/off switch'; it being accepted that loss of capacity can be transient and that capacity must be determined according to the question that is in issue (as acknowledges the MCA and Code of Practice).

Mandatory appointment of more than one attorney

Another possible safeguard which could be put in place would be for donors to be required to appoint two or more attorneys (perhaps even jointly). This could be seen as a form of self-regulation; one step between the current system and mandatory accounting to the COP. However, this may well be against the autonomy of the donor and inconvenient for both the donor and the attorneys. It is also argued that this may lead to potential for disagreement between the parties which may result in stalemate (although if both parties are acting in the best interests of the donor, this should be minimised).

Excluding certain classes of persons from being attorneys

Two further possible safeguards which could be built into the English system are arguably at the furthest boundary of proportionality. The first is to extend the class of persons who are unable to be an attorney (from those who are bankrupt or under a financial relief order in Property and Financial LPAs) to include employees of care facilities, close relatives and carers. This would certainly address SJ Lush’s concerns about the majority of abusers being sons and daughters but it would be a restriction on a donor's autonomy and arguably it is the people on that list who would be, in most cases, the persons that the donor trusts the most and the persons best placed to act in the donor’s best interests.

Limit the scope of LPAs

On a similar vein to the concept of attorneys requiring security bonds, some jurisdictions have considered a limit on the value of an estate which can be subject to a power of attorney. This does not, of course, take into account the fact that the size of an estate and its complexity are not necessarily in correlation.

Senior Judge Lush’s comments have certainly sparked a debate and it would be expected that in the light of his comments, most legal practitioners and many members of the general public would welcome a review of the current system in England and Wales, if only for the purposes of building public confidence. It will be interesting to see whether the 'paperless' era will, in time, offer safeguards which are not currently conceived or whether the perceived value or benefit of safeguarding will diminish as the desire for the speed and convenience of  'digital' increases. Bodies such as the Financial Conduct Authority may be pressing for LPAs to 'go digital', but the process toward that is likely to be slower than such bodies envisage as there does not appear to be much demand or enthusiasm from the legal profession and there is likely to be a generational split between attorneys and donors: for many attorneys, electronic documents and transactions may be everyday language but for the majority of those for whom EPAs and LPAs are currently being exercised, this would be beyond their comprehension.

This article was first published by the ACTAPS (The Association of Contentious Trust and Probate Specialists) in April. The content of this article is for general information only. For further information, please contact Bernadette Baker or another member of Birketts’ Estate Planning and Wills Team. Law covered as at April 2018.

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