Protection  

What changes are being made to the LPA system?

  • Describe some of the challenges of setting up an LPA
  • Identify the changes being introduced to modernise the system
  • Describe the status of paper-based LPAs
CPD
Approx.30min
What changes are being made to the LPA system?
A new powers of attorney bill has been introduced, having received its second reading in the House of Commons on December 9 2022.

With the ageing population and rise in dementia, lasting powers of attorney are becoming increasingly more important in today’s society.

Yet, with the growing digitisation of services, accelerated in particular by the pandemic, it is vital that the LPA system can keep up in order to continue to meet peoples’ needs and protect those vulnerable from fraud and abuse.

An LPA is a legal document that allows an individual (the donor) to appoint one or more trusted people (known as the attorneys) to manage their affairs and make decisions on their behalf in the event that they lose mental capacity.

Article continues after advert

To be effective, the LPA must be registered with the Office of the Public Guardian and an application fee paid of £82.

There are two types of LPA:

  1. Financial LPA: this allows the attorney(s) to make decisions about an individual’s money and property, which could include paying their bills, selling their property and investments.
  2. Health and care LPA: this allows the attorney(s) to make decisions about an individual’s medical treatment and day-to-day care. It also allows the donor to choose whether or not they want to give their attorney(s) the power to make decisions as to whether they should receive life-sustaining treatment (that is, any care, surgery or medication that is needed to keep them alive).

The parties to an LPA are the donor, the attorney(s) being appointed and a certificate provider, who is asked to confirm that the donor understands the nature and scope of the LPA and that the donor has not been coerced into making it. 

Flora Nelmes is an associate at Hunters Law

 

 

 

 

If someone loses capacity without an LPA (or its predecessor, an enduring power of attorney, which can no longer be made) in place, their loved ones would have to make an application to the Court of Protection for an individual (known as a ‘deputy’) to manage their affairs.

Such applications however are very costly; you have to pay an application fee (currently £371 per deputyship order), an assessment fee (if you are a new deputy), an annual supervision fee, and if you are a property and financial affairs deputy, pay a security bond. This is excluding any costs for instructing a solicitor to assist you.

The application can also be complex and take several months to be processed, during which time it may not be possible for anyone to manage the person’s affairs or make decisions on their behalf.

The current LPA system

While the number of people acting under an LPA has risen significantly in the past few years to more than 5mn, the process of making an LPA has hardly changed since it was first introduced and it retains many paper-based features that are more than 30-years-old. 

Although the OPG did introduce a digital tool to allow attorneys to contact organisations more easily, the final stages of the process (for example, the signing, witnessing, attesting and delivering the LPA) still need to be completed on paper.

The registration period can also take a long time (lasting up to 20 weeks on average), which can be problematic when a donor has since lost mental capacity and the attorneys are unable to make decisions on their behalf until the LPA has been registered.