The Times newspaper reported on Saturday 30 June that there was a huge disparity in numbers between those likely to be affected by dementia and those preparing for it. The paper reported that 97% of people who should be considering making legal provision in the event of incapacity have failed to do so. Given that over 33% of people in total have done nothing at all to prepare for life post-retirement, such as a pension, this comes as no surprise.
The Times' report was based on a study commissioned by Solicitors for the Elderly (SFE) (and others) warning of an impending 'incapacity crisis' created by too few people making lasting powers of attorney (LPAs). The SFE reports that it is particularly worried about people's future care arrangements as fewer than a million health & welfare LPAs have been registered with the Office of the Public Guardian – against a population of 12.8m British residents over the age of 65.
LPAs attracted some adverse publicity last year when Denzil Lush, until recently the most senior judge in the UK Court of Protection, stated that he would never sign an LPA himself. However, we strongly believe that the risks he outlined, principally around the safeguards in place to protect vulnerable people and their assets, are minimal compared to the risks of not making a LPA. If you do not make an LPA, your affairs will be managed by the Court of Protection; an LPA enables you to choose who you wish. The potential safeguarding issues touched on by Denzil Lush can be mitigated by adding appropriate clauses to the standard LPA form.
If you suddenly became incapable of managing your finances, even a trusted relative or friend would struggle to help you without an LPA. For instance, your bank will not deal with anyone other than you, the account holder. The Mental Capacity Act 2005 provides the necessary safeguards to protect a vulnerable person and anyone can report attorney financial abuse of a vulnerable person to the safeguarding unit at the Office of the Public Guardian.
The SFE notes that "nothing offers more protection and control than putting a Health and Welfare LPA in place" and encourages us all "to break the taboo around medical decisions and end of life care" and should be "a topic of discussion around any dinner table". We would endorse their sentiment: too often we see the financial and emotional distress caused because the relatives of a person suffering from mental incapacity are unable to help them, giving them no option but to apply for a Deputyship Order through the Court of Protection. Not only is this an expensive route, it gives you no say in who will be appointed as your deputy. For those wishing to retain some control beyond their incapacity, the LPA is still the right choice, but in conjunction with some carefully worded conditions.
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