One of the most important documents you can have…

…But what is the future for Lasting Powers of Attorney?

Lasting Powers of Attorney (LPAs) enable you to choose people (Attorneys) to make decisions for you and act on your behalf if you lack capacity to manage your financial affairs

Lasting Powers of Attorney (LPAs) enable you to choose people (Attorneys) to make decisions for you and act on your behalf if you lack capacity to manage your financial affairs and/or make decisions regarding your care and welfare in the future. LPAs are like Wills, very important legal documents and, in some ways, more important as they relate to decisions made about you whilst you are still alive. 

A Property and Financial Affairs LPA can also be used to enable your Attorneys to act whilst you are capable, under your direction. This can be useful if, for example, you were physically injured or away on holiday/business, as your Attorneys could then help out when key decisions need to be made.

Importance of Lasting Powers of Attorneys

We would all hope that we will not lose capacity but it is regrettably not something that can be guaranteed. A loss of capacity can onset quickly as a consequence of a range of afflictions, including dementia/Alzheimer's disease, a brain tumour or a stroke. It can also be a result of severe learning difficulties, caused by an accident or a side effect of medication or medical/surgical treatment. It is not therefore something that only affects the elderly.

Without a Property & Financial Affairs LPA, the bank is unlikely to allow anyone to access your account and, if you lose capacity, it is likely to freeze the account completely. This can cause significant problems with ensuring that bills/debts are paid and you have the access to money you need, be that for care, food or otherwise. A loss of capacity would also prevent your property from being easily sold, even when jointly owned, which can cause problems if you had to move elsewhere or otherwise needed the capital. 

The family or those concerned would need to make an application to the Court of Protection for a Deputyship Order, which would give them similar authority. The process is, however, both lengthy and costly and is undoubtedly the last thing they will want to be doing if something had happened to you. The expense does not end there though, as the appointed Deputy can make no more than mundane decisions without having to refer matters back to the Court, as well as having to make an annual return to the Court showing all receipts and payments. On top of that, the Court charges an annual fee and there can also be security bond premiums to pay.

Without a Health & Welfare LPA, your family generally do not have the right to make decisions, if you cannot, about your welfare, healthcare and medical treatment (including life sustaining treatment). It is likely that the doctors and social services would make those decisions and you hope they will consult and listen to the family. If the family were concerned or disagreed with the decisions being made/proposed then they would have to apply to the Court of Protection. The delay can cause significant problems, especially if urgent medical treatment or care is in dispute. Again, going to Court is the last thing the family want to be doing. The Court is very reluctant to grant Personal Welfare Deputyships so having an LPA in place is important.

Paperless Lasting Powers of Attorney - the future

The Office of the Public Guardian's business plan for 2019-20 states an intention to:

"make better use of digital products, services and smarter ways of working".

 The OPG is working on a proposal for paperless LPAs and looking at launching an online service.

Currently, an LPA has to be certified by someone who is not an Attorney or family member who is able to assess and confirm the donor's capacity to make and understand the LPA at the time they sign. The signatures of the donor and attorneys are also witnessed by someone independent. The original signed documents are then sent off to the OPG for registration with the requisite fee. 

Whilst a paperless LPA service has obvious advantages for the environment and efficiency, the OPG will need to ensure that the risks of an electronic service are properly handled.  Given the inherent power granted by an LPA, such as the authority to access the donor's bank accounts, there is a significant risk of fraudulent documents being produced. Similarly, an online service may not allow for sufficient scrutiny of a donor's capacity and may lead to more LPAs being made under duress.

Whilst the attempt by the OPG to encourage more people to set up LPAs is welcome, it is still recommended that people take advice from a solicitor to ensure they receive proper advice and to ensure the documents are done correctly.

If you would like any assistance or legal advice with setting up Lasting Powers of Attorney please contact our Wills, Trusts & Probate team on 01733 882800 or email info@hcsolicitors.co.uk .

Author

Joseph Stoehr, Solicitor

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This article has been prepared for general interest and information purposes only; it does not constitute legal advice and should not be relied on as such. While all possible care has been taken in the preparation of this article, no responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by the firm or the authors.