More clients need to be encouraged to make an LPA

The problem with the new regime is not just the increased paperwork but the extra time spent in preparing the documents and advising clients. This obviously equates to extra cost to the client and this can be the reason why LPAs are not created, especially in these uncertain economic times. The concern is that avoiding the cost now potentially creates a real problem for clients in the future should they lose their mental capacity.

Under capacity

People losing mental capacity without an EPA or LPA will have to rely on a deputyship order in which an appropriate person is appointed to look after their financial affairs or health and welfare decisions.

There are four major problems that arise from this:

• It is lengthy. In my experience on average an application takes between six and 12 months. ?This is time when the person who has lost capacity has no one looking after their financial affairs, which can often cause great stress to the patient’s family.
• The cost of obtaining a deputyship order can often be four to five times that of an LPA.
• The patient does not get to choose who is going to be their deputy; it may end up being someone they didn’t want making decisions for them.
• A deputyship application is less flexible than an LPA. The Court of Protection (CoP) does not like awarding health and welfare deputies who can be appointed under the LPA. The CoP has made it clear, and the statistics show, that the CoP wishes to deal with health and welfare issues on a decision-by-decision basis and therefore requires a fresh application for each decision. This is not practical for the patient’s family and is likely to cost a lot of money.

My worry is that if clients are putting off creating LPAs there is going to be a generation that will not have provision for their life ahead in which they are not able to make decisions. This problem isn’t going to just affect them directly, but also the people around them. Such provision surely must be more important to them than making a will that will only come into effect after they have died.

Ticking bomb

So, how do we stop the mental health time bomb ticking? Well, the answer is we can’t, it is for clients to make a decision. However, I have found a few things useful in getting more clients to appreciate the value of the LPA.

I work as closely as possible with trusted financial advisers (IFAs) and accountants who are aware of the issues with mental capacity. If a client thinks their solicitor is just trying to make a further sale with an LPA they may think again when it is mentioned to them at their annual or biannual meeting with their accountant or IFA.

Building a reliable team around a client has never been more important; advice given by three parties is more likely to be listened to than advice given by one source. This approach has to be the key to making sure the client gets looked after and has everything in order moving forward. With clients who have been clients of the firm in the past, it is important to establish a database of who has and who does not have powers of attorney in place.

Once this database has been created, writing to clients to inform them of the changes to powers of attorney in recent years and what the implications are of not having one has proved successful for me. The cost of this exercise is relatively low and generates about a 30 per cent success rate of clients getting back in touch to create LPAs.

Paul Coombs is a solicitor in the wills, trusts and probate department at Myers Lister Price

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