Last Wednesday’s episode of Coronation Street saw the conniving Stephen Reid trying to forge his mum, Audrey’s Lasting Power of Attorney (LPA) in a desperate effort to pay his wife Gabrielle back the money he stole from her business. His evil doings seemingly have no end, and where will the story take us?
Although this is fiction, the system of appointing attorneys (or “donees”) under a LPA remains open to abuse, given the potential power wielded by an attorney. Sadly, unscrupulous people can seek to forge LPAs, and to thereby gain control over the donor (the person granting the LPA) and their affairs. I have also acted in a number of cases where the authority intended to protect a vulnerable person is used improperly and for the benefit of the person with authority.
LPAs are legal documents in which someone (the donor) gives another person (the attorney) the right to help them make decisions, or take decisions on their behalf if they become unable to do so themselves, usually if they lose mental capacity. There are two types of LPA, covering property and financial affairs, which can be made for both personal and business reasons, and health and welfare. A donor can make one or both types of LPA and can chose who to appoint as their attorney(s). This should be done while they have mental capacity to take the decision to do so.
There is a certain level of protection afforded by LPAs in that they can only be used once they have been registered with the Office of the Public Guardian (OPG), the overseeing government body. The OPG keeps a register of LPAs and investigates complaints against attorneys. However, the OPG’s power is limited, and it can only become involved once the donor lacks capacity. This is particularly difficult if the LPA has been drafted in such a way as to allow an attorney to take decisions on the donor’s behalf before they lack capacity.
Of course, it would be clear to lay persons that forging a donor’s signature can be challenged, and this is one of the prescribed grounds on which an objection can be raised. However, there is a lack of specific understanding within the general population about the limitations of LPAs that makes it relatively easy for them to be misused.
It is important to remember that an attorney’s role is, as far as possible, to assist the donor in taking decisions, and they should not simply dictate to the donor. Attorneys have a duty of care to the donor, to carry out the donor’s instructions, and to act in the donor’s best interests. They should not delegate authority and have a duty of confidentiality. In addition, there are also duties to keep the donor’s money and property separate from the attorney’s, and to keep records of payments made on behalf of the donor. If a complaint is made, the OPG can investigate the actions of attorneys and ensure that they are complying with their duties. The process of removing an attorney is then more straightforward.
However, matters are more complicated where the donor does not lack capacity as then the OPG is without power to investigate. Unless the LPA expressly provides for them to do so, attorneys are only authorised to act on the donor’s behalf when the donor lacks capacity. Unfortunately, I have acted in instances where those named on an LPA assume the authority granted by it when the donor has capacity to take decisions themselves, or where they assume total control of the life and, often more crucially, the finances of the donor.
Sometimes these actions are innocent, and stem from a lack of understanding of capacity. Under the Mental Capacity Act 2005 (MCA 2005) someone is assumed to have mental capacity unless it can be proved otherwise, and the fact that they have a condition or diagnosis, for example of dementia, does not prove that they lack capacity. However, this is little understood, as is the fact that capacity fluctuates and is time and situation specific. Capacity relates to the specific decision that a person is taking at the specific time. Therefore, it is quite possible that a person can lack capacity to take one decision at one time, but have the capacity to take a different decision at the same time, or to take the same decision at a different time. A specialist medical opinion should be obtained if there are any doubts about a donor’s mental capacity. A lack of understanding of these basic concepts can give rise to misuse of the powers granted under an LPA. Thankfully, proper advice and guidance to an attorney can usually remedy such an innocent mistake.
However, sometimes the misuse is not innocent, and usually I see this where a donor is particularly wealthy, as attorneys have unfettered access to their finances. Oftentimes this can happen when someone has the beginnings of a condition such as dementia which can be relied on, incorrectly, by the proposed attorneys as proof of the donor lacking capacity. These situations can also arise where the donor is isolated, particularly if the people named in the LPA are those who were closest to the donor.
Essentially, it is important that a donor should be aware that the LPA is a powerful document and that before signing it they should think carefully about who they wish to appoint, and to speak to all the people they are considering appointing as their attorney, as well as a trusted professional.
So, what can you do if you know or suspect that a Lasting Power of Attorney is being misused? If they have mental capacity, the donor can cancel their LPA by preparing and signing a deed of revocation in front of a witness. They must then send the deed of revocation to the OPG along with the original LPA. Sometimes this is not straightforward, for example if the named attorneys have restricted the donor’s access to communications. If the donor does not have capacity, the matter would need to be referred to the Court of Protection for the attorney to be removed, and a deputy appointed in their place. Having appropriate legal advice and sympathetic support can be of great benefit.
Contact our Court of Protection Team
If you think that an LPA is being misused, or if you have other concerns about a vulnerable person, and would like to know how we can help, please contact our Court of Protection team on courtofprotection@bishopandsewell.co.uk or contact 020 7631 414
