Readers may recall the rush to put in place enduring powers of attorney (EPAs) last autumn before they were replaced with lasting powers of attorney (LPAs). One year on, we examine whether the new arrangements have proved to be a success.
The EPA was a document which enabled one or more attorneys to be appointed by a donor to look after his or her finances should assistance be required at any stage, for example, if the donor lost mental capacity and became incapable of looking after his or her own financial affairs.
Unfortunately, it is no longer possible to carry out the appointment of an attorney under the new system speedily, as used to be the case. If someone urgently needs assistance with his or her finances, for example, if a member of the family needs to go into hospital, goes abroad or is starting to lose mental capacity, the family must now hope that an LPA was put in place and registered well in advance.
In much the same way as many people consider they will never die and rather carelessly do not make a will, there are those who consider that they will never lose mental capacity and accordingly do not make the appropriate arrangement of putting in place an LPA whilst it is possible. This can result in a very complicated and costly position for the family.
The new regime introduced a series of hoops which have to be negotiated before the LPA can be successfully put in place.
These have significantly increased the length of time the process takes, which has inevitably added to the cost. In consequence, the expense and the delay are now deterring many people from implementing these important documents, potentially leaving families exposed to an even more costly exercise if no LPA has been made.
To guide the family through the procedure for an LPA, we suggest that a solicitor should carefully complete the forms with the donor.
Those who have tried to put these complicated documents in place themselves, without seeking advice from a solicitor, have discovered during the last year that in order to validate them successfully, one needs to complete the various stages required to register the LPA with the Court of Protection. These are scattered with many possible pitfalls.
There are many reasons for the LPA application to be rejected including not correctly ticking all the boxes on the forms, the LPA not being signed and dated in the correct order, and the full address not being given. Even one box missed may be disastrous. An unregistered LPA is not valid and therefore one must go through the whole process again - and pay a further court fee of £150. The process may in any event be too late if the donor has by this stage lost mental capacity.
Due to the overwhelming number of applications the Office of the Public Guardian has been receiving since the new system was introduced, donors may now have to wait up to six weeks before the application is even considered. There then follows the five week notice period before the application is given a date to be registered.
An LPA should be as important to individuals as a will. We would urge that, if you have not made an LPA, and did not put in place an EPA before October last year, you should now effect this document as soon as possible to avoid problems later.
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.