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Powers of Attorney Act: What’s changing?

A Private Members’ Bill proposing substantial changes to the Lasting Powers of Attorney process was passed by UK Parliament on 14 September 2023, without amendment, and Royal Assent was granted on 18 September 2023, with the bill becoming the Powers of Attorney Act 2023 (the Act).

The Act will modernise the process for making and registering Lasting Powers of Attorney (LPAs), meaning individuals should find it easier to create LPAs and at the same time, be greater protected from abuse.

What are LPAs and when would I need one?

LPAs are legal documents which enable an individual (the ‘donor’) to appoint one or more trusted people (their ‘attorneys’) to manage their affairs and make decisions on their behalf, especially in a situation where they lose mental capacity.

Where an LPA isn’t in place and an individual loses mental capacity, the only alternative is an application to the Court of Protection to appoint someone as their Deputy to make decisions on their behalf, which can be stressful, expensive and may take several months to resolve.

What’s changing under the Lasting Powers of Attorney Act?

One of the main changes introduced by the Act is a move to a fully digital system for those who wish to use it. It has, however, been confirmed that paper applications will still be available for those who can’t access the digital system.

In addition, the right to register an LPA will now be restricted to the donor alone and not their appointed attorneys. At the same time, the ability to challenge an LPA and its registration will be extended to a much wider group of interested parties than it is currently.

It is hoped these measures will help to improve many individuals’ access to LPAs and add protection for the vulnerable and those potentially subject to abuse.

The legislation that introduced LPAs is now almost 20 years old and improvements to procedures for making LPAs are welcomed. The time taken for the Office of the Public Guardian (OPG) to register an LPA rose from around eight weeks before the Covid pandemic to approximately 16 weeks during it – and these timescales have not returned to pre-pandemic levels at any point since.

The OPG handles over 19 million pieces of paper due to its offline system. It is therefore hoped that the digitisation process will reduce these waiting times and provide a faster and better service to applicants by picking up any errors in the document earlier and by avoiding documents being posted back and forth between the applicant and the OPG.

Tackling fraud and abuse

One of the main reasons for the introduction of LPAs was to address the issue of fraud and abuse, which was prevalent under the previous system of enduring powers of attorney. LPAs introduced the requirement that an independent person provide a certificate within the document stating that the donor had capacity and understood the purpose of the document and the implications of signing it was added. Whilst this security measure is an improvement, it has become clear that there may not be sufficient measures to protect the vulnerable and elderly from the risks of abuse.

Measures such as identifying the donor and allowing more people to object to the registration of an LPA may help, however, a fully digital process that is easily accessible to the public could be open to abuse. Unfortunately, the measures introduced in recent years by Government and the OPG have removed the need for individuals to take legal advice during the process. Whilst using a solicitor or legal advisor will incur an expense, it provides an important opportunity for advice to be provided on the suitability of attorneys and for potential abuse and misuse to be identified.

It would be advisable for elderly or vulnerable individuals wishing to make an LPA, but unsure where to turn for advice, to contact Solicitors for the Elderly, an organisation which has accredited members who are experienced in providing advice to clients in these circumstances.

Edward Allen is a partner in the private client team at Andrew Jackson Solicitors

Andrew Jackson’s dedicated private client team has several years’ expertise advising clients in connection with LPAs; solicitor Charlene Merry is accredited by Solicitors for the Elderly.
Please don’t hesitate to get in touch with our team by calling (01482) 325242 or emailing edward.allen@andrewjackson.co.uk or charlene.merry@andrewjackson.co.uk

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