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Recent comments by a retired senior judge regarding the lack of safeguards in the power of attorney system has caused concern amongst the general public. Susan Glenholme, a partner in our award winning and Law Society accredited Private Client Department specialising in lasting powers of attorney responds to address those concerns.

A lasting power of attorney allows a person to appoint an attorney, often a family member or friend to make financial or welfare decision on their behalf when they are unable to do so due to some form of incapacity.

The judge’s comments criticised the effects that such lasting powers of attorney can have on family relations when things go wrong whilst highlighting the perceived advantages of the alternative Court of Protection appointment of deputies.

People should always be informed that there is the potential for the abuse of the power of attorney system as there is also with the alternative Court of Protection system. It is worth noting though that by the end of 2016, some 2 million lasting powers of attorney would have been registered with the Office of the Public Guardian, cases of issues arising from the abuse of lasting powers of attorney given the numbers are rare, amounting to less than 1% of registered lasting powers of attorney.

If we accept that no system is perfect, how can we then look to prevent abuse as far as possible? The best way to prevent abuse is to use a reputable solicitor to prepare your lasting power of attorney. The solicitor will then, in most circumstances act as the Certificate Provider, whose role it is to ensure that the person granting the lasting power of attorney understands the document that they wish to grant the power and that there is no question of undue influence.

The solicitor will talk about which attorneys are being appointed and their suitability to be appointed. The solicitor will also discuss with you the impact of that attorney’s appointment within your wider family circumstances  This dialogue helps to ensure that by the time the lasting power of attorney has been made that the person granting it has given it a great deal of thought with the aid of trusted guidance.

A solicitor’s firm will also often offer to store the original registered lasting power of attorney helping to ensure that it is not used until you want it to be. A solicitor’s firm owes an ongoing to duty of care to its clients and that care continues with the storage of the original document as well and safeguards are put in place so that the document is not released until the right time.

The judge is of course right that there is a balance to be struck regarding the appropriateness of lasting powers of attorney and the Court of Protection alternative and a solicitor can discuss both of these options in detail. For more information on lasting powers of attorney see our FAQ’s on lasting powers of attorney.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.