Solicitor Duncan Watson featured on BBC radio this lunch time to discuss lasting powers of attorney with presenter Malcom Boyden.
After hearing the story of a man whose mother had given lasting powers of attorney to an apparent family friend who later turned out to have manipulated the mother and taken a significant sum of money, Duncan was asked for his thoughts.
Transcript from Duncan Watson on BBC Radio Hereford & Worcester
MB: Malcolm Boyden
DW: Duncan Watson
MB: Let’s have a chat about this to Duncan Watson. He’s a solicitor from Stowe Family Law, they specialise in lasting power of attorney. Duncan, good afternoon to you, sir.
DW: Good afternoon, Malcolm.
MB: Thank you for coming on. Firstly, your reaction to Nick’s story, you heard it there.
DW: It’s pretty troubling, it is awful that somebody would go and abuse the trust of somebody at that stage of their life who you would say would be quite vulnerable and subjected to influence like that and the effects on the family is terrible.
MB: What I can’t understand and hopefully you will be able to help us on this, when the solicitor said there is this friend you know called Margret, she has been given the lasting powers of attorney, any problems? Well, of course there was a massive problem with that but Nick couldn’t turn it around, that was it, it was done and dusted it seems – is that right?
DW: It is difficult when going back in time, that was made under a scheme called injuring power of attorney scheme, but even then, Nick could have raised some concerns to the division of the court called The Office of the Public Guardian which was created in 2007 so at the time he could have either raised his concerns to the court or to this administrative division of the court. To say, actually I am troubled by this and I have never known anything about it and I am concerned. So he could have raised concerns that way and the solicitor really should have set that out in writing but since the system has changed, there is a specific document that goes out to people if they are going to be notified.
MB: Is it a troublesome process to raise problems or raise your concerns as you put it?
DW: No, it’s not anymore. If you are a person specified that has to be told a lasting power of attorney is being made, and that’s a decision entirely up to the donor now – the person making the lasting power of attorney, they can choose under the latest incarnation of the system whether or not anyone is told about the lasting power of attorney being made. If someone is to be told, a form has to be sent out to them and it tells them how they might object or raise some concerns, and it can be as easy as making a telephone call.
MB: That’s good. How common is it, Duncan for lasting power of attorney to be abused in this way?
DW: It is uncommon and I suppose that is the good news. The Office of the Public Guardian, this division of the court releases statistics every year as most public bodies do and the incidents are now around half a percent of all applications end in what’s called ‘referral’, and that is where someone raises a concern but then there will be a number of people in cases where there are no referrals, there are no concerns raised and that is because no one knows what is going on. So the main thing I suppose is to make sure that the person making the lasting power of attorney in the first place is advised properly and is educated about how they might protect themselves.
MB: So there are two things really that have come up then from Nick’s story, firstly how best to protect yourselves and your loved ones from things going wrong and perhaps most importantly, whatever age we are to start thinking and talking about this lasting power of attorney. Do you agree with that?
DW: I would really agree with that strongly. This is by no means any sort of criticism or whatever but the sooner people start talking about it within families then essentially they can do this in good time without having to rush and people can then go and get good advice and be discussed within families; who are normally the people who normally have that person’s best interests at heart. So I think by talking about it early, you go some way towards protecting yourself and protecting that person. The second part of it is going and getting some advice from someone who has that experience of dealing with this sort of thing who knows what can go wrong and can advise you on how to protect yourself against that.
MB: And early is the key here as you just heard Nick say there “my mum lost the mental capacity” and I think that’s when the power of attorney kicks in. If you haven’t sorted it out by the time your loved one loses their mental capacity then there are real problems I guess, yes?
DW: Yes, essentially. You can only make a lasting power of attorney whilst you still have the mental ability to make that decision; that’s called ‘capacity’, it is a legal term but essentially it is about the ability to make those decisions for yourself. The difficulty is in Nick’s case, it concerned an injuring power or attorney which had a slightly different system where the attorney could still use that power of attorney before it was registered with the court, it just happened to registered at the point that the person no longer had capacity. Under the new scheme that currently operates, the lasting power of attorney scheme, people can only use those powers of attorney once the court has been notified that it has been made. Even then, the courts essentially become aware of it, it doesn’t prevent any abuse happening by the attorneys and the time really prevent the abuse is at the outset when it is being made. Get solid advice, talked about how that can be stopped, what safeguards can we put in there.
MB: Excellent stuff. Thank you for your expertise and thanks for your time, Duncan.
DW: No problem at all.
MB: Duncan Watson there, a solicitor from Stowe Family Law. It might have helped, I hope it has.
Listen to Duncan’s full interview here (interview starts at 02:08:00)