What’s happening with Lasting Powers of Attorney?

Man using a laptop computer at a desk

If you’re looking to set up an LPA or just want to understand what all the fuss over new legislation is about, here’s a rundown of what’s changing and how it affects you.

When the Powers of Attorney Act 2023 received Royal Assent on September 18, it set off a series of changes that will reshape how Lasting Powers of Attorney (LPAs) are handled. It’s clear the government has taken on the challenge of modernising the LPA system, aiming to make it more user-friendly, quicker to navigate, and added layers of security to protect everyone involved.

What is an LPA, anyway?

Life has its fair share of surprises, and some unfortunately can impact our ability to make our own decisions. That’s where a Lasting Power of Attorney (LPA) comes into play. It’s a vital legal document that lets you appoint a trusted person to step into your shoes if you’re not in a position to make decisions yourself. This could be for short-term needs – for example, if you’re recovering in hospital and someone needs to handle your day-to-day finances – or long-term planning, such as if you were to face a condition that affects your mental capacity.

Having an LPA in place is a form of future-proofing your wellbeing and assets. And here’s the thing: creating an LPA doesn’t mean you’re immediately handing over the reins. As long as you’re mentally fit, you remain in the driver’s seat, and the LPA simply acts like a spare tyre in the boot – there if you need it but not in the way while you’re cruising along.

It’s also crucial to dispel a common myth – your spouse or next of kin doesn’t automatically get the authority to make decisions for you if you lose mental capacity. Only an LPA gives that level of legal permission, and the upcoming Powers of Attorney Act 2023 is set to make setting up an LPA a smoother ride, enhancing the process with a digital boost that benefits everyone.

The new digital landscape

One of the headline changes is the shift towards a digital-first approach. Say goodbye to the days of back-and-forth with paper forms; the new system is setting up to allow you to make errors and fix them without waiting for snail mail. For those not so internet-savvy, don’t worry – there will still be a paper process so no one gets left behind. It is envisaged that with donors will be able to choose whether to make an application digitally, on paper or some combination of the two.

Cracking down on fraud: identity checks

The Act tightens up the identification process. Now, everyone participating in the LPA – certificate providers, attorneys, donors, and replacements – will need to prove they are who they say they are. Better identity checks mean it’ll be tougher for anyone with bad intentions to take advantage.

Who can register an LPA?

Here’s a significant tweak: initially, both donors and attorneys could register the LPA with the Office of the Public Guardian (OPG). Consequently sometimes donors would make an LPA and then leave it unregistered for the future (because there are fees associated with registering the document). This was permitted, although a somewhat risky strategy as any errors in the LPA wouldn’t be discovered until it was too late.

With the new Act, it’s now only the donor who can kickstart the registration process. It sounds straightforward, but there are questions about what happens if the donor isn’t able to register the LPA themselves because they’ve lost the capacity. This change could complicate things, so it’s worth keeping an eye on how this plays out in real life.

Objecting to an LPA

Another area the Act has looked at is how to handle objections. It used to be a bit more restricted as to who could raise concerns if they smelled a rat. Now, that door is opened wider, letting more people voice their worries. The Public Guardian will sift through these objections and decide whether there’s enough evidence for concern. If not, the LPA goes ahead as planned. If there is, it falls to the donor or attorney to make their case to the Court of Protection. This could get dicey for those in families where there’s tension.

While widening the net for objections might seem like a move toward increased vigilance, it also opens the door to potential complications. It could translate into a more contentious and costly ordeal for those facing legitimate opposition, an increased workload for the Court, and potential delays in resolving these disputes. Overall, the changes seek to add layers of protection but may also introduce new challenges that will need careful navigation.

The digital gap

Here’s the thing: moving to a digital system is great for many, but not everyone’s riding the tech wave. For those who can’t or don’t want to use online systems, it’s crucial that the paper alternative isn’t just an afterthought. And while you won’t be forced to get legal advice when making an LPA, it’s like going on a road trip without a map. You could get where you need to go, but you’re more likely to take a few wrong turns. With such a powerful document, that’s not ideal/

Staying the course until the big reveal

There’s no set date for when the Act will take full effect. If you’re thinking about setting up an LPA, the takeaway here is not to wait. The current system is still running, so getting things in order now is a smart move, especially as current registration times are 18-24 weeks.

Getting advice

You might wonder if simplifying the LPA process might encourage more individuals to draft LPAs independently, without legal guidance.

I feel like a warning is needed here. Sections of the LPA, especially those involving the appointment of attorneys, replacements, how the attorneys are appointed (jointly, severally etc), when the LPA can be used and the detailed instructions or preferences, can be complex. The intricacies of these sections are areas where errors are frequently made. They require careful consideration to reflect the donor’s true intentions and to ensure the LPA is legally robust and effective. An LPA can pass all the checks for the OPG’s registration process but be rendered effectively useless because of how it has been completed.

The new legislation intends to make the LPA process more accessible, efficient and secure but it does not reduce the need for professional assistance and donors should not underestimate the complexity of certain decisions and their legal implications. Experienced solicitors can navigate these complexities, provide clarity, and help avoid common pitfalls that could have significant consequences. They can ensure that the donor’s intentions are articulated clearly, and that all legal requirements are met, thereby creating an LPA that is fit for purpose and stands up to scrutiny.

Given the complexities and the potential for costly errors, seeking advice from a solicitor remains a prudent step in the LPA creation process – regardless of which registration process is used.

The bottom line

This new Act is like getting a fancy new software update – it’s exciting, looks promising, and should ideally make life easier. But, like all updates, there might be a few glitches to iron out along the way. While I anticipate more guidance on the Act’s roll-out, the key is to continue planning wisely. Life can be unpredictable, and having an LPA is like having a safety net, ensuring someone you trust can step in to make important decisions if you ever need them to. None of us know what’s around the corner.

Setting up an LPA is one of those adulting things that’s easy to put on the back burner, but like that pile of laundry, it won’t sort itself out. Despite the changes, the purpose stays the same: it’s all about looking out for your future self and making sure you’ve got a say in what happens, even if life throws a curveball your way.

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