LPA waiting period should be abolished, Lush says

Denzil Lush, senior judge at the Court of Protection, has called for the statutory waiting period in the registration of LPAs to be abolished.

The Office of the Public Guardian (OPG) is currently considering cutting the period from six to four weeks.

In a comment in next week’s Private Client Adviser, a sister publication of Solicitors Journal, Lush said there were “remarkably few objections” to registrations.

He went on: “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 (roughly 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.”

However, Lush said the number of severance applications to the Court of Protection made by the OPG when he considers that a clause in an LPA is invalid had more than doubled, 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.”

Lush added that in April the OPG planned to launch a digital tool, which would make it easier for customers to complete the current LPA forms online.

“Hopefully, this will eradicate many of the errors that currently occur when completing the LPA form,” he said.