Legal News

The Court of Protection grants lasting power of attorney to the families or close friends of individuals who lack the mental capacity to make their own decisions regarding their health and wellbeing, as well as their finances and property matters. Denzil Lush, who was the senior judge in the Court of Protection for twenty years, says that people should be more aware of the risks associated with lasting power of attorney documents, and has vowed that he himself would never sign one owing to the “devastating” impact they can have on family relationships. Lush wrote, in a new foreword to his book – regarded the definitive legal guide in this area – that the “lack of transparency causes suspicions and concerns which tend to rise in a crescendo and eventually explode.”

Although the power of attorney process can bring reassurance to people who lack mental capacity and their loved ones, it also carries great risks, notably the risk of financial abuse. Financial abuse is when one person takes control of another’s access to and use of their economic resources within a relationship of trust. Coercing an elderly person into signing deeds, wills, or power of attorney documents is an example of this. Family members, care-givers, or even strangers can financially exploit an elderly person by misappropriation of their financial resources, and this was seen in the case of an elderly Dunkirk and Normandy veteran, who was financially exploited by his neighbour.

In 2003, Frank Willett was in his early 80s and suffering from dementia, and he appointed his neighbour Colin Blake as his power of attorney, giving Blake responsibility for his financial affairs. Blake befriended Mr Willett when he moved next door to him in North Yorkshire in 2000. After around two years of supposed friendship, Blake persuaded Mr Willett to go with him to a solicitor, where a will was drawn up making him “principal beneficiary”. A lasting power of attorney was drawn up, giving Blake full control of Mr Willett’s financial affairs. Frank’s daughter Lesley and her husband Brian Felton lived over 300 miles away, so they were initially happy about the agreement as they believed Frank’s assets would be safe.

However, just weeks after the papers were signed, Blake started to take out large sums of money from Mr Willett’s £60,000 savings for personal use. He withdrew almost £9,000 in a single transaction before withdrawing further money in order to pay his own bills. Additionally, £15,000 was placed into the account of Blake’s building firm, with a further £70,000 invested in property in France. Frank was moved to a care home in September 2004, at which point Blake registered the enduring power of attorney (EPA) with the Court of Protection, allowing him to sell Frank’s two-bedroom house. This was challenged by Lesley and Brian Felton in court; however, they were unable to demonstrate that Blake was unfit to be Frank’s attorney, as they did not have access to Frank’s bank accounts, which had been emptied by Blake.

When Lesley went to visit her father in his care home in 2007, she discovered that Blake was selling his home, liquidating his company and moving to France. Meanwhile Frank’s care bills were in arrears despite the fact that his house had been sold by Blake for more than £130,000 upon his move to the care home. Office of the Public Guardian finally investigated in 2008 and revoked the power of attorney, but at this point it was too late, and Lesley discovered that all of her father’s money had gone, along with his medals from his time as a serviceman, her mother’s wedding ring and family photographs. When Frank passed away in 2009, Lesley and Brian had to overturn Frank’s will in court because it had been made under Blake’s influence. After the police pursued him in France, Blake finally pleaded guilty to theft last month and was sentenced to four-and-a-half years.

Jo Shepherd, prosecuting, explained to the court that Frank Willett was “confused and struggling to cope” when the EPA was signed. In an impact statement from Lesley, she said that Blake “cynically preyed” on her father’s “confusion and vulnerability” in the years leading up to his death. Upon sentencing Blake, Judge James Spender QC said:

“I’m quite sure that you took advantage of his dependence as he deteriorated and you abused that level of trust. You helped yourself to his money to prop up your business, and then when the house was sold you helped yourself to a considerable portion of the sale.”

Since this case of financial abuse took place, changes have been made, with a Lasting Power of Attorney (LPA) replacing an Enduring Power of Attorney (EPA) in 2007. The enduring power of attorney regime was a simple process where a short form was signed by the person in question and their chosen attorney. If the person then lost capacity, the EPA would be registered by the Court of Protection, but it could still be used from any point between signing and registration. In the case of LPAs, they are more complicated to put into place (but easier to register), and specifically cover different aspects of life. In order to appoint an attorney, one now needs someone to provide a certificate confirming that you have mental capacity and are choosing your attorney of your own free will, and that certificate can be provided by a solicitor, doctor or individual not related to you that has known you for at least two years.

Unlike with EPAs, LPAs must be registered with the court before they can be used, and when registration takes place, a number of designated individuals must be notified to try and protect against rogue attorneys exploiting vulnerable people. However, Denzil Lush’s warning raises questions as to the safety of power of attorney documents.

Author Helen Cummings is a Trainee Solicitor in the Public Law and Court of Protection Department at Duncan Lewis. Helen has gained legal experience in litigating a broad range of areas, including:

• Judicial Review arising:
  
  
  1. under the Children Act and Community care Legislation in respect of local authority’s refusals to provide services to vulnerable children and their families;
  
  
  2. against Primary Care Trusts for refusal to provide medical treatment on the NHS;
  
  
  3. from challenges to statutory law; against public bodies involving environmental and planning points;
  
  
  4. consultation challenges against governmental cuts.


• Court of Protection proceedings arising from the representation of “P”, professional advocates and families against public bodies.


• Providing representations for individuals against regulatory bodies such as the: General Medical Council, HCPC, and Solicitor Regulatory Authority.


• Providing representations for children, and adults, in education matters.