In a move likely to be welcomed by the legal profession, the Government has decided to postpone the implementation of a fully online system for the registration of Lasting Powers of Attorney ("LPAs") at the Office of the Guardian ("OPG"). This article provides a basic introduction to LPAs and analyses the Government's decision.
What is a Lasting Power of Attorney?
An LPA is a legal document in which a person gives someone the ability to make decisions on their behalf. The person who gives the LPA is known as the donor and the person to whom authority is given under the LPA is called the attorney. Unlike an ordinary power of attorney an LPA continues to be effective even after the donor has become unable to manage his own affairs due to lack of mental capacity, whether temporarily or permanently, as a result of an illness, disability or accident.
Before 1 October 2007, it was possible to make an Enduring Power of Attorney ("EPA") in order to manage an individual's property or financial affairs. An EPA could be used without being registered provided that the donor still had mental capacity. Once the donor lost mental capacity an EPA could only be used after it had been registered. It is no longer possible to make a new EPA and therefore if an individual wants to appoint someone to manage their affairs and an EPA is not already in place, an LPA should be made. However, existing EPAs made before 1 October 2007 are still valid.
There are two different types of LPA which can now be made: (i) Property & Financial Affairs and (ii) Health & Welfare. A donor can decide to make either or both types of LPA. There is no requirement for both types of LPA to be made at the same time.
Making a Lasting Power of Attorney
A donor can only make an LPA whilst he is still able to make decisions for himself. There is a separate form for each type of LPA.
Any person over the age of 18 may be appointed as an attorney, although a person who is bankrupt cannot be appointed as an attorney under a Property & Financial Affairs LPA. The donor can appoint more than one attorney and replacement attorneys can also be appointed. If the donor decides to appoint more than one attorney, he must indicate whether he would like them to make all decisions together or whether he would like them to be able to make decisions both together and independently.
For an LPA to be valid, the donor must fully understand the nature and implications of the LPA at the time it is made. Consequently, the donor must choose an independent person, known as a Certificate Provider, to complete a certificate verifying that:
- the donor understands the nature and effect of the LPA;
- no fraud or undue pressure is being used to induce the donor to make the LPA; and
- there is nothing else that would prevent an LPA from being created.
The Certificate Provider may either be someone whom the donor has known personally for at least two years or someone with the appropriate professional skills such as a solicitor or the donor's GP.
An LPA must be registered at the OPG before it can be used. The donor can apply to register an LPA himself if he still has mental capacity, or the attorney can apply to register an LPA at any time, whether or not the donor has lost mental capacity. An LPA must either name persons who should be notified of any application to register the LPA or state that there are no named persons. If the donor does not specify any named persons then two Certificate Providers will be required. This procedure is designed to safeguard the interests of the donor, as it gives interested parties a chance to object to the registration of an LPA.
The OPG charges a fee upon the registration of an LPA (currently £110.00 per LPA) and the process takes approximately two to three months. Although a donor may feel that there is no need to register an LPA unless and until he has lost mental capacity, given the time delay in registration it would be prudent to register the LPA immediately after it has been made in case an attorney is needed to make decisions in an emergency.
Digitisation: On Hold For Now
In 2012, the OPG set out its strategy for "digitisation". A frequent complaint about the LPA process is that completing the forms is an arduous, technical process where errors are easy to make.
In July 2013, a partial online system was introduced, where the OPG check the form online before it was sent off. However, this system still requires the user to print out the checked form, have the hard copy signed, and post it to the OPG for registration.
The next stage of the plan was to be a fully online system, in which the application system would be entirely electronic and there would be no option to apply "in hard copy". Understandably, professional bodies raised significant concerns over this plan, citing forgery risks and lack of online access as potential hurdles.
These criticisms have been accepted for the time being, and so the current system remains in place. The Government has promised to consult again before introducing such reforms, and the move will surely be welcomed in the profession as a victory for common sense.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
