The Court of Protection (CoP) grants Lasting Power of Attorney (LPA) to the families or close friends of individuals lacking mental capacity to make decisions regarding their health and wellbeing, finances and property matters.
Denzil Lush, a senior judge in the CoP for twenty years, says people should be aware of the risks associated with LPA documents. Lush wrote, in Cretney & Lush on Lasting and Enduring Powers of Attorney, that the “lack of transparency causes suspicions and concerns which tend to rise in a crescendo and eventually explode.”
The power-of-attorney (PoA) process can reassure those lacking mental capacity and their loved ones. It also carries great risks, including financial abuse – e.g. the coercion of an elderly person into signing deeds, wills, or PoA documents.
In 2003, Frank Willett, in his 80s and suffering from dementia, appointed neighbour Colin Blake his PoA. Blake persuaded Frank to have a will drawn up making him “principal beneficiary”. Blake took full control of Frank’s financial affairs with LPA.
Frank’s daughter Lesley and her husband lived over 300 miles away and initially supported the agreement, believing his assets would be safe. Blake started to take money from Frank’s savings, withdrawing almost £9,000, putting £15,000 into his building firm account and investing £70,000 in a French property.
Frank moved into care in 2004. Blake registered the Enduring Power of Attorney (EPA) with the CoP, allowing him to sell Frank’s house. Lesley and Brian Felton challenged this; however, they failed to demonstrate that Blake was unfit to be Frank’s attorney, without access to Frank’s bank accounts. In 2007, Blake sold his home, liquidated his company and moved to France. Meanwhile, Frank’s care bills were in arrears, despite his house being sold for over £130,000. Office of the Public Guardian investigated in 2008 and revoked the PoA. When Frank passed away in 2009, Lesley and Brian overturned Frank’s will created under Blake’s influence. After the police pursued him, Blake pleaded guilty to theft and was sentenced to 4.5 years.
Upon sentencing Blake, Judge James Spender QC said:
“I’m quite sure that you took advantage of his [Frank’s] dependence as he deteriorated and you abused that level of trust.”
Since this case, changes have been made, with LPAs replacing EPAs in 2007. The EPA regime was a simple process where a short form was signed by the person in question and their chosen attorney. LPAs are more complicated and thorough. To appoint an attorney, you need someone to provide a certificate confirming your mental capacity, which can be provided by a solicitor, doctor or non-relation who has known you for more than two years.
LPAs must be registered with the court before use. When registering, certain designated individuals must be notified to protect against rogue attorneys. However, Lush’s warning raises questions regarding the safety of PoA documents.
Author, Helen Cummings, is a Trainee Solicitor in the Public Law and CoP Department at Duncan Lewis, with experience in litigating a broad range of areas, including Judicial Review in various areas of public law such as children and community care and CoP proceedings.
Duncan Lewis' Court of Protection Department assists individuals in publicly and privately funded cases from offices across London and throughout the UK. The department is Legal 500 recommended leading practice for cases that overlap mental health and capacity and deprivation of liberty safeguards. The firm is applauded for its specialism in judicial review claimant matters and higher courts work. For more information, please contact Duncan Lewis Solicitors on
0333 772 0409.
