Please note that this News item is not maintained, and reflects the law as at the date of publication or update.
Since their introduction in 2007, Lasting Powers of Attorney (‘LPAs’) have provided a much improved and safer mechanism for people to pass responsibility for managing their finances to third parties than was afforded under the previous Enduring Power of Attorney regime. The new LPA regime also saw the introduction of LPAs for Health & Welfare so that decisions regarding medical treatment could also be delegated to third parties where mental capacity has been lost.
The LPA forms have undergone several changes since 2007 but the government is now reforming the overall process to make it safer and easier to make LPAs.
One of the main changes is to make it possible to make LPAs online but this leaves scope for identity fraud. Therefore, a further change will be the introduction of identity checks on the person making the LPA (the ‘donor’) and the person who has counter-signed the LPA to confirm that the donor understands what they are signing (the ‘Certificate Provider’).
Once signed, LPAs must be registered at the Office of the Public Guardian (‘OPG’). If a donor wants a third party to be notified when the LPAs are registered (as an additional safeguard), under the new regulations the OPG will send out these notices, setting out how and where the third party should raise any concerns about registration of the LPAs.
Paper LPAs are approximately 15 pages long and if any changes are required (for example if an attorney dies), the LPA must be returned to the OPG for updating. Under the new regulations, an LPA will be registered as an electronic document which can be accessed by third parties and updated by the OPG without requiring the paper version to be returned.
Registration of LPAs is currently taking up to 20 weeks and so reform is welcome. However, the new legislation is not yet in force and it is likely to take some time for the changes to be implemented. The LPA process should therefore still be started sooner rather than later but there are ways that donors can help their attorneys to help them whilst registration of the LPAs is awaited:
- The donor should write down their wishes regarding their finances and health. Although not legally binding, it can help attorneys to make decisions.
- A third party mandate can be set up with a bank to enable someone to make bank transactions.
- A General Power of Attorney, whilst only valid whilst a donor has mental capacity, can help to bridge the gap pending registration of the LPA for Property & Financial Affairs.
- An Advance Decision can set out details of a donor’s wishes regarding future medical care.
Despite the delays and overdue reform, Lasting Powers of Attorney remain the quickest, easiest and most cost-effective way for donors to choose who they want to manage their finances or make health decisions on their behalf should they lose mental capacity to make such decisions themselves. We can help guide you through the process, ensuring that your LPAs are completed correctly and efficiently, and advise you about safeguards and ways to help your attorneys and family members until the LPAs have been registered.
For more information on this topic, please contact Cara Grant.
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