Lasting Powers of Attorney (LPAs) are important legal instruments because they take effect when someone loses the ability to make key decisions about their health and welfare or their finances. We have explained how LPAs work in detail before, and what happens if someone loses capacity without an LPA in place. At Gamlins Solicitors LLP, with our offices situated throughout North West Wales we can personally advise clients on the choices they need to make when deciding to make an LPA. For example:
- Who should you appoint as an attorney?
- How many attorneys should you appoint?
- Will your attorneys be able to act alone or jointly when making decisions for you?
Our experts will also make sure that you and your family understand fully the legal significance of the documents once signed and registered with the Office of Public Guardian (OPG).
While extremely useful, there have been criticisms of the way LPAs work in practice. These range from:
- Complaints that the forms are unclear
- The delays in registration of LPAs are unacceptable and undermine people’s willingness to make LPAs in the first place
- The process is unduly expensive
What’s New? The Powers Of Attorney Act, 2023
In a bid to streamline and modernise the LPA process the government announced an in-depth consultation in 2022 to gather views on how the system could be made more efficient and more secure. This exercise resulted in new legislation being introduced in 2023. Here we look at how that legislation, The Powers of Attorney Act 2023, changes things and how these modifications will impact our clients who wish to make an LPA or who are concerned that a family member or loved one should consider making one.
By introducing a fully digitised service the Powers of Attorney Act 2023’s, main aims are:
- To modernise the service,
- Introduce new safeguards from fraud and abuse
- Make it simpler to give people peace of mind their interests will be protected
Please note that for those without online access the ability to apply for an LPA manually by post is retained.
Some of the specific changes made by the Powers of Attorney Act, 2023 include:
Digitisation – One of the main reasons for delays in the registration of LPAs before the 2023 Act was the way often minor errors and typos in the LPA forms were not spotted until late in the registration process. This would result in documents being returned and the application process effectively having to be restarted. It is hoped that under a digitised system errors will be picked up quickly and applicants will be able to instantly rectify them online.
Security – There are more robust ID checks for anyone involved in the process, including certificate providers, attorneys and donors (the person who is making the LPA). If the ID requirements are not met, the OPG will not register the LPA.
Donor-only registration – Under the current system, both donors and attorneys have the power to register LPAs with the OPG. Under the 2023 rules only the donor will be able to register an LPA. We think this will effectively mean LPAs being registered once they are made to avoid the situation of the donor losing capacity before registration and for his or her family having to involve the Court of Protection because there is no valid LPA.
Objectors – The pool of people who can object to the registration of an LPA has been widened. While the intention here is to protect vulnerable people from abuse, we can see a scenario where frivolous or unjustified objections will be easier to make. Ultimately this could unjustifiably prevent an LPA being registered before a door becomes incapacitated.
Overall we welcome the changes. In our experience too many LPAs fail to be registered because of minor administrative reasons and the digital service should reduce this happening. That said there are some ambiguities under the new process. These include the management of objections to the LPA and how the new restriction that only the donor can register the LPA will work in practice. For these reasons we still believe anyone considering an LPA should seek independent legal advice.
To discuss LPAs please call us on 01492 860420 or contact the team online. Alternatively if you would like to discuss making an LPA or a will with one of our solicitors, you can arrange an appointment at the Gamlins LLP branch that is closest to you. We can also arrange a home appointment of it is more convenient.