Power of Attorney abuse: new bill being debated

Trainee Court of Protection solicitor, Amelia Clarke, takes a look at the proposed Bill to tackle Power of Attorney abuse.

A Lasting Power of Attorney can help you to plan for the future, in particular, how your health, wellbeing and financial affairs will be looked after if you lose capacity to make these types of decision for yourself.

Given the powerful nature of the documents, only those who you trust implicitly to act in your best interests should be appointed. Unfortunately, there has been a rise in cases of abuse by appointed attorneys, the most commonly cited reason being financial gain. Family Court data shows that over 50% of people are over age 75 when they registered their LPA. These people are amongst the most vulnerable, and this was discussed in the first reading of the proposed Powers of Attorney Bill, which aims to close this procedural gap which can affect so many people.

Powers of Attorney Bill

The bill had its 1st reading on 12th November 2024. Focusing on prevention of Power of Attorney abuse, the bill proposes:

• Placing duties on care home and banks in respect of use of LPAs:
  Care homes have a duty to protect new residents and should have an obligation to update the LPA register with the Office of the Public Guardian (OPG). The bill also calls for implementation of government-regulated safeguarding procedures for all banks over the way they deal with LPAs and the accounts of donors.
• Making provisions about the powers of the OPG to investigate actions of attorneys and requiring the Secretary of State to review the effectiveness and use of the same:
  Of the 7,973 risk-assessed safeguarding concerns raised in 2022-23, some 90% resulted in no action by the Office of the Public Guardian.
• To require the OPG to take steps to promote the facility to request a search of its registers:
  The OPG100 enables the public to find out whether someone has a lasting power of attorney. The bill would put more pressure on the OPG to publicise this service and include the introduction of online notices after the signing and before the registration of an LPA.

The bill at around 20% completion is due for its second reading on 17th January 2025.

Examples of Power Of Attorney abuse:

• Coercion to sign:
  Vulnerable persons could be at risk of pressure from family members or others to sign an LPA. This behaviour could be threatening, and in the absence of a professional certificate provider, a vulnerable person may be coerced into signing a document they do not fully understand. It is possible for the donor to choose a lay person to act as their certificate provider. It is essential that they have known the donor for some time, and feel comfortable confirming that the donor understands the documents.
• Theft/Exploitation:
  An attorney is duty bound to use the donor’s money for the benefit of the donor. This duty can be abused, if the attorney fails to keep the donor’s money separate from their own, and uses it for their own financial gain, amounting to theft.
  • Examples of how this can occur include; making excessive payments from the donor’s account and passing them off as ‘gifts’, taking out loans/credit card applications in the donor’s name and even making unwise/high risk investments.

Holmes & Hills can help with Powers of Attorney and Power of Attorney abuse

If you suspect someone is at risk of Power of Attorney abuse, specialist Deputyship solicitors at Holmes & Hills can help you.

Should you be thinking about planning ahead and preparing Lasting Powers of Attorney, our experienced solicitors can help you to create and complete the correct documentation, giving you advice to minimise frequent and costly mistakes.

Perhaps you are struggling to care for somebody who lacks capacity and does not have a Lasting Power of Attorney in place. In this instance, we can help you to make a Court of Protection application to be appointed as Deputy to assist your loved one.

Holmes & Hills have offices in Colchester, Braintree, Sudbury, Halstead, Tiptree, Witham and Coggeshall and offer appointments face to face, by telephone or by video conferencing. Furthermore, we are able to offer home visits where necessary to accommodate our clients’ needs, meaning we can bring our specialist services to you.