Powers of Attorney: Are they being abused?

A helpful guide to share with your Attorneys to ensure best practice.

 

The number of investigations into the use of Power of Attorney has increased by 45% in 12 months, according to figures from the Office of the Public Guardian.

The number of investigations by the Office of the Public Guardian (OPG) into people with Power of Attorney stood at 1,199 in 2016/17 but shot up to 1,729 in 2017/18, signalling a need for increased education as to what is and is not allowed.

Powers of Attorney allow people to appoint someone to make decisions on their behalf should a time come when they lack the mental capacity to do so themselves. If the person has already lost mental capacity then the Court of Protection can appoint a deputy to make decisions on that person’s behalf.

There are currently two different types of Power of Attorney – one covering property and financial affairs and another covering health and welfare decisions.

More than 2.3m Powers of Attorney were registered with the OPG by April 2017. These were split into almost 1.6m covering property and financial affairs and a further 732,000 relating to health and well-being.

When done properly, the Attorney fulfils a vital role in safeguarding the interests of the person they are acting for. However, the sheer number of investigations into the actions of Attorneys is concerning and action needs to be taken to curb poor practice.

While there have been instances where people appointed as Attorneys have used their position to steal money from the person they are acting for, there are also instances where the Attorney has unwittingly stepped beyond the boundaries of their responsibilities, or have neglected to keep up to date records explaining what they have done and why.

People taking on these responsibilities need clearer guidance on what they can and cannot do.

The number of investigations into the actions of court-appointed deputies is relatively small, accounting for 69 investigations in 2016/17 and 82 for 2017/18. This is due to the fact there are more safeguards under the deputyship regime. This includes the requirement to file annual returns detailing what decisions have been made on an individual’s behalf and why.

Royal London has launched a Good With Your Money guide on the key issues to be considered when acting as an Attorney or Deputy. 

Three main points include:

• Make sure the Attorney is fully prepared to carry out the wishes of the person they have agreed to be an Attorney for. For instance, the Attorney may not agree with their views on their medical treatment and find it difficult to carry out their wishes at the appropriate time
• Keep clear records of why decisions have been taken on behalf of someone and the rationale behind them
• Make sure the Attorney knows exactly what they can and cannot do when it comes to gifting money to other parties

We encourage all clients to have a Power of Attorney, but these are clearly open to abuse if some clear guidelines are not followed – perhaps you might like to share the Royal London guide with YOUR Attorneys so that no mistakes are made.

You should also read our blog ‘Could you be eligible for a power of attorney fee refund?’ and check whether you can make a claim for some off the initial filing fees if you made your Power of Attorney between 1 April 2013 and 31 March 2017.