A regional law firm is advising clients to consider preparing a
Lasting Power of Attorney to insure against a future in which
accident or mental incapacity leaves them unable to govern their
own financial affairs.
Sofia Tayton, an associate with Stratford-upon-Avon law firm
Lodders, says the cost of drawing up the forms for Lasting Power of
Attorney is "significantly less" than making an application to the
Court of Protection, which is the only option if someone loses
capacity without an Enduring or Lasting Power of Attorney in
place
"You can choose who you would like to deal with your financial
affairs in the event that you lack capacity, or appoint a
professional person such as a solicitor or account."
Mrs Tayton's advice follows what she claims were "somewhat
sensational" reports in the press about the Court of Protection and
the Office of the Public Guardian.
A Sunday newspaper article claimed a recently established
"secret court" was empowered to seize the assets of elderly and
mentally impaired people and turn their lives over to the state -
against the wishes of relatives.
It alleged the Court of Protection, working with the Office of
the Public Guardian which provides it with information to pass
judgment, hears 23,000 cases a year in private and is empowered to
seize assets - while charging fees to do the job.
The article claimed the CP had seized £3.2 billion in
personal assets in the first two years of its existence and last
year took £23 million in fees.
It also suggested the system, set up by Justice Secretary Jack
Straw, would be overhauled by the Conservatives if they win the
general election.
The article alleged there were 3,000 complaints about the Court
of Protection last year.
Mrs Tayton said: "State involvement in the financial affairs of
the mentally incapacitated goes back to medieval times.
"The current Court of Protection replaced an existing office of
the Supreme Court when the Mental Capacity Act 2005 came into
force.
"It is not a 'secret court,' but people only become aware of it
if they have an incapacitated friend or relative as it is only then
they need to use it.
"I have made numerous successful applications to the Court for
relatives to be appointed as deputies, with minimal administrative
costs of £175 per year. It is only if there are no willing or
able friends or relatives that an independent Deputy is
appointed.
"People may not be considered fit to be a Deputy if they are
bankrupt or have had financial problems. Also, if there are
disputes within a family it is likely an independent deputy will be
appointed.
"The Office of the Public Guardian used to be known as the
Public Guardianship Office, and has also been around for many
years.
"It acts in an administrative capacity, and deals with the
registration of Enduring Powers of Attorney and Lasting Powers of
Attorney as well as ensuring deputies and attorneys are carrying
out their duties.
"It does not receive state funding, which is why fees are
charged at various stages of dealing with its case load.
However fees can be waived if an applicant's assets are below
a certain level.
"Neither the Office of the Public Guardian nor the Court of
Protection can seize an individual's money for their own
purposes.
"However, dealing with the Office of the Public Guardian and the
Court of Protection can be frustrating. I have made many complaints
over the years. It is not a perfect system, but neither is it
something new, sinister or threatening as suggested in recent
articles.
"If people have difficulties with the Court or the paperwork,
take the advice of a professional, for example a member of
Solicitors for the Elderly.
"If people are concerned by what they read over the weekend,
they should not panic, but seek legal advice."