12 June 2023
Loss of mental capacity is a growing issue in our society with rates of dementia alone expected to increase sharply in coming years due to an ageing population. With this background, it makes sense for individuals to take steps to future proof the handling of their affairs. One way of doing so is to create a Lasting Power of Attorney (LPA).
Broadly, an LPA is a document which enables the person making it (the Donor) to appoint one or more people (the Attorney(s)) to make decisions on the Donor's behalf if the Donor loses mental capacity. There are two types of LPA a Donor can make: one to deal with their financial decisions and one to deal with decisions about their health and welfare.
If an individual loses mental capacity and does not have an LPA (or an earlier equivalent known as an Enduring Power of Attorney) in place, an application must be made to court to appoint a deputy to manage the individual's affairs. This can be a time-consuming and costly procedure - particularly unhelpful at a time when there may be some urgency in needing to deal with the individual's affairs. For these reasons, an individual is well-advised to make one or both types of LPA whilst they have capacity to do so.
Whilst the LPA route is preferable, it is not without its own issues. There has been growing concern around the number of cases referred to the Office of the Public Guardian (the body responsible for registering LPAs and supervising Attorneys) (the OPG) for investigation of abuse by Attorneys. Aspects of the LPA making process have also been criticised as cumbersome and outdated, especially in light of various advances in technology. The Government has undertaken to review the procedure for making and registering LPAs, with a view to modernising the LPA-making process and seeking ways to reduce the risk of an Attorney abusing the authority granted under an LPA.
The key objectives of the modernisation project are to:
Changes are expected in the following areas:
Signing and witnessing of LPAs
Timing of registration
Verification of identity
Enabling the OPG to verify the identity of the Donor, Attorney(s) and certificate provider.
Currently, objections can be made on the basis that:
There is only express provision in the legislation for objections to be made by Donors, Attorneys and other named persons, being such persons as the Donor has set out in the LPA. The OPG often receives objections from third parties, including family members and Local Authorities. However, the legislation does not set out a clear basis on how to deal with such third party objections and it is understood this can lead to some potential objectors feeling that they are unable to intervene and confusion over how the OPG should handle the objection.
Watch this space for further updates.
If you have any questions about LPAs or would like to discuss putting one in place, please contact our Private Client team.
by multiple authors