Not so simple

Lasting Powers of Attorney (LPAs) were introduced in October 2007 replacing the Enduring Power of Attorney. The original LPA forms were 25 pages long with a lot of statements that required boxes to be ticked which were easy to overlook and resulted in many applications to register being rejected.

A revised form of LPA was introduced in December 2009. The new forms are 11 pages long and come with a separate information sheet which is aimed at lay people completing the power without legal advice. The information sheet explains the terminology and the order in which the power should be completed.

The revised forms are, on the face of it, easier to complete. They contain warning boxes throughout to alert the parties to matters that must be considered such as the timing of signatures and what is required if the donor does not choose a person to be notified of the registration. Clarification is provided at the relevant point as to who can and cannot be a witness. Parties sign up to positive statements rather than tick boxes.

Confusing and unclear

There remains, however, some confusion when it comes to actually filling in the forms. For example, when a replacement attorney is appointed, the forms do not make it clear which attorney the replacement attorney will substitute and it is necessary to take specific instructions so that the appropriate statement can be included in the power.

In addition, where attorneys are appointed to act together in respect of some matters and together and independently for others it may make the power unworkable. The British Banker's Association in response to the LPA consultation said that appointing attorneys to operate in this way may makes the power impossible to act upon as joint mandates are not practical when an electronic banking service is used.

The process of making an LPA remains the same. The person making the power must identify someone '“ a trusted friend or relative '“ who can be told about the LPA in case they want to raise any objection '“ for example, because it is being enacted under duress '“ before the LPA can be registered. If they do not have someone who can be told, then they must have two certificate providers. A certificate provider must be someone who either has known the person for over two years or is a professional with the skills and expertise to certify that the person making the LPA has the mental capacity to make the power and that he is not being coerced by anyone else to make the power.

Despite the simplification of the forms, the introduction of LPAs has turned what was once a simple and straightforward process of a person being able to appoint an attorney to deal with their affairs into a long-winded and often expensive exercise.

For many clients, there is simply too much information for them to comprehend. For example, they must refer to the Mental Capacity Act and the Code of Practice which runs to 301 pages.

Limited protection and higher costs

In reality, there is no more protection for vulnerable people. The forms are readily available direct from the Office of the Public Guardian (OPG) or from high street retailers. It is not possible for the OPG to check that people are who they say they are on the forms and just by sending out notices that an application has been made to register the LPA will not necessarily prevent fraud or abuse of a vulnerable person taking place.

In addition, the LPA must be registered with the court before it can be used.

Therefore, unless there is a specific restriction on the power that it can only be used when the person making the power has lost mental capacity, there is no way of knowing whether the individual has mental capacity or not.

Although there has been some improvement in the workings of the OPG, it can still take up to four weeks just to receive an acknowledgement that an application to register an LPA has been received.

Obviously, all of this ultimately results in higher legal costs to the client, and there is a court registration fee of £120 for each application. Registration of the power is likely to take at least two months.

Still useful

Despite all this, appointing an attorney is still a prudent thing to do. The LPA is a very useful document, particularly in today's electronic age and living with the Data Protection Act. If a person does not have a valid LPA and they then cannot look after their own affairs the alternative is for an application to be made to the Court of Protection for a deputy to be appointed. This really is a last resort as it is an expensive and lengthy process which can take up to six months, and which puts the amount of work involved in appointing an attorney into perspective.