Start the ball rolling

I was interested to attend an Office of the Public Guardian’s panel deputy conference in Wolverhampton recently and noted a few useful points for advisers.

Alan Eccles, the public guardian, mentioned that everyone at the OPG is aware of the delays plaguing applications submitted between January and March, the feeling being that this was a blip rather than evidence of a fundamental problem. He said we should all start to see much quicker turnaround times now. I remain ever hopeful.

Eccles also said that solicitors are still binding LPAs in a formal way. This does not work well with the scanners that OPG use and the new computer systems being installed will be even less forgiving. So, please, don’t bind LPAs or put them in smart covers before they are sent for registration.

The new online tool for preparing LPAs was discussed as well. I have found it to be very good – up to the point where the registration forms are produced. Having to put the registration date in when I am just printing the paperwork out ready for clients to sign means that the LPA002 has to be amended by hand afterwards.

There are a couple of other irritating little quirks as well. For example, if the donor appoints four attorneys, two separate continuation A1 sheets are produced (with one name on each).

Equally, if the donor appoints one attorney and two replacements, the fact that the replacements are to act ‘jointly’ or ‘jointly and severally’ is recorded on a continuation sheet. A lot of clients who are putting LPAs in place have difficulty signing. Not being able to edit the forms to reduce the number of pages is annoying.

Having said that, the OPG is in the process of developing a tool for professionals that should allow more flexibility. I am looking forward to this immensely. How sad?

Denzil Lush, senior judge of the Court of Protection, spoke at the conference and looked at two particularly interesting areas: the House of Lords select committee on the Mental Capacity Act 2005 and the compatibility of the Mental Capacity Act 2005 with the United Nations convention on the rights of persons with disabilities (CRPD).

Spreading the message

I wholeheartedly support the idea of raising awareness of LPAs, which the government has said is a major aim. A lot of clients have difficulty signing, often because the preparation of an LPA has only been considered after a health crisis. So there will be a ‘life planning day’ held next year, part of getting knowledge about LPAs, wills and advance decisions ‘out there’ and shared.

A number of us try to do this in our own ways already, with client seminars, press releases, talks at care homes and information sheets, and these are still excellent ways to raise awareness in our own local areas. Any national publicity given to ‘life planning’ will be something we can build in to our own marketing, and of course we should all keep up to speed with plans.

However, whether or not the MCA is compatible with article 12 of the CRPD is a more complex and less encouraging issue. The Ministry of Justice is preparing a report on this, and the government will meet the UN committee early next year for discussions.

In simple terms, the definition of incapacity in the MCA is based on substitute decision-making and the objective ‘best interests’ of the person deemed to lack capacity, rather than supported decision-making.

This is at odds with article 12, and it seems clear that there will have to be a fundamental change, not just in our legislation but in how each one of us views and works with clients who have a disability.

Sofia Tayton is a partner and head of care and capacity at Lodders Solicitors

She writes the regular in-practice article on care and capacity for Private Client Adviser