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LPA waiting period should be abolished, says Denzil Lush

Senior judge responds to OPG’s plans to cut statutory waiting period from six to four weeks

18 February 2013

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Denzil Lush, senior judge of the Court of Protection, has called for the statutory waiting period in the registration of lasting power of attorneys (LPA) to be abolished.

The Office of the Public Guardian (OPG) has announced that, among other actions, it aims to reduce the statutory waiting period for LPA registration from six to four weeks to speed up the process while still retaining adequate safeguards.

Lush told Private Client Adviser: “If the OPG considers that a clause in an LPA is invalid, it must apply to the Court of Protection to sever, or strike out, the offending provision. The number of severance applications has risen dramatically from 412 in 2011 to 1,200 in 2012.

“The commonest mistakes involve clauses that are incompatible with the appointment of attorneys to act ‘jointly’ or ‘jointly and severally’, or ‘jointly for some decisions, and jointly and severally for other decisions’.

“At the heart of the problem is the fact that ‘joint’ does not simply mean the number of persons who, at any one time, must participate in the decision-making process. It has other important implications in terms of succession and liability.

Eradicating errors

“In April this year, the OPG plans to launch a digital tool that will make it easier for customers to complete the current LPA forms online. Hopefully, this will eradicate many of the errors that occur when completing the LPA form.

“The OPG also plans to reduce the current statutory waiting period in the registration of LPAs from six weeks to four. The purpose of the waiting period is to enable any interested parties to make an application to the Court of Protection objecting to the proposed registration of an LPA.

“There are remarkably few objections. In 2011, the OPG received 174,214 applications to register an LPA, whereas the Court of Protection received only 107 applications objecting to a registration.

“It seems perverse to delay registration by six weeks in 174,214 cases simply because in 107 (about 0.06 per cent) of those cases someone has objected to the registration. The waiting period serves no useful purpose and I would recommend that it be abolished entirely.”

Solicitor Chris Munday, representing the Withers elder law team, who contributed to the consultation and are taking part in the pilot for online LPA applications, said:

“Transforming Services in the Office of the Public Guardian broadly fell into two parts: changes to the lasting power of attorney (LPA) forms, registration process and searches of the LPA register; and changes to the supervision of deputies, their security bonds and other issues.

“The consultation raised a major question about the possible introduction of a ‘hybrid’ form, which would combine the two present types of LPAs. As clients frequently choose the same attorneys, we were in favour of such a form where this is the case, but not where different attorneys are chosen. The different points at which property and finance attorneys’ (P&FA) and health and welfare attorneys’ (H&WA) authority can arise could be an issue, but not where donors decide that their P&FA should only act when they have lost capacity, and, where detailed H&W restrictions and/or guidance is included, it would not be appropriate for that to be shown to the staff of financial institutions, etc. For this reason we felt that the ‘hybrid’ form should be introduced alongside the existing separate P&FA and H&W forms.

“We are pleased to see that the Office of the Public Guardian (OPG), in its response, intends to take the development of a ‘hybrid’ form forward, but it is aware that it should not become the default option. We look forward to seeing a draft of the form.

“We were not in favour of having additional ‘short’ versions of LPAs alongside the existing forms and the new ‘hybrid’; a choice of five different forms would lead to confusion.

“As most LPAs include neither restrictions nor guidance, we suggested moving both to a separate continuation sheet. Comprehensive explanatory notes could then be included on the reverse of that sheet, which would hopefully reduce the incidence of restrictions and guidance being severed.

“We favoured retaining the words ‘jointly’ or ‘jointly and severally’ over any more plain English versions. They are used in the Mental Capacity Act and are generally easily understood by clients. However, we felt that the option for donors to appoint attorneys to act jointly in respect of some decisions, and jointly and severally in respect of others should not be retained. In practice, we find that it is hardly ever used and, from the case reports, the scope of the attorneys’ authority is often unclear or difficult to operate in practice. We were, however, in a minority in expressing this view, and the option is to be retained. But the OPG will revisit the guidance to ensure the term is clearly explained.

“We also favoured removing the need for a second certificate provider; again, we were in the minority. We remain of the view that those clients who do not have anyone to notify will have difficulty in finding one, let alone two, certificate providers. If the first certificate provider has done their job properly, the second has no use; if the first is ‘a man of straw’, set up by an abuser, the second will be one too. We felt that the role of a certificate provider was important in discouraging abuse.

“In a digital context, we are very concerned that the ease with which LPAs can be created online will enable potential abusers to exert pressure on a donor without the same degree of protection afforded by a certificate provider. We suggested a system, similar to that for online tax returns, requiring a separate confirmation from the certificate provider. The OPG intends to explore further how the role of the certificate provider will work in a digital context.

“Finally, we were among the many respondents who favoured reducing the registration waiting period from six weeks to four.”

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