The Office of the Public Guardian (OPG) in July 2015 put in place new simpler Lasting Power of Attorney Forms and registration procedure which remove certain safeguards that some practitioners believe could lead to abuse of the system. The OPG hopes that the new LPAs will encourage more individuals to prepare LPAs as at present only around 50% of people aged over 75 have an LPA in place.
Types of LPA
There are two types of LPAs – health and welfare and property and financial affairs. Health and welfare LPAs authorise attorneys to make decisions about where individuals live, who visits them, consenting or refusing to medical treatment on your behalf and day to day care issues. Health and welfare LPAs can only take effect if an individual has lost mental capacity to make those decisions. Until that time the individual maintains full control of these decisions.
In contrast, property and financial affairs LPAs allow attorneys to have authority to deal with property and finances, including the buying and selling of property, operating bank accounts and investment and dealing with tax and benefit affairs.
Reduced Safeguards
Both types of LPA have a certification page where a suitably qualified third party “certificate provider” must sign to confirm that in their opinion the donor understands what is being signed and that no one has influenced them in their decision to make the LPA. One of the concerns held by practitioners is that as the certificate provider no longer needs to set out their qualifications that there is no way of checking whether the person who is signing the certificate has the relevant qualifications to understand what is required.
Prior to July this year it was mandatory for at least one person to be notified of the registration otherwise a second certificate provider was required. Practitioners are concerned that the removal of the need to notify third parties, such as a family member or professional adviser, on the registration of an LPA removes a safety net whereby coercion or fraud may be identified. Families are often complex and notifying family members on the registration of an LPA makes the family aware of what is going on. A family who are aware of who is assisting a person generally works in the best interests of the donor instead of finding cause to argue over the individual’s affairs.
Guidance
Another concern is that those preparing LPAs without the benefit of legal advice may include restrictions or conditions on their attorney’s powers such as for example that they do not want their attorneys to assist them with their property and financial affairs until they have lost mental capacity. Although this may seem like a good idea, it is often the fact that many individuals reach a point where they require help due to physical rather than mental incapacity. A poorly word restriction or condition will prevent the attorneys from assisting when required.
The completion of LPA documentation without professional advice often leads to:
- the incorrect use of specific terminology;
- restrictions that seem a good idea but in fact restrict attorneys in carrying out their duties;
- use of ambiguous wording which is open to debate;
- incorrect or conflicting appointments of attorneys; and
- failure to take account of the attorney’s abilities at what is often a challenging and emotional time.
It is important that attorneys are provided with guidance as to how they are expected to act and that this is kept up to date.
The preparation of an LPA is much more than a form filling and box ticking exercise. We recommend that LPAs and the supporting guidance for the appointed attorneys are only prepared with the benefit of professional advice is taken.