The power of knowledge

The House of Lords Select Committee's 2014 report on the Mental Capacity Act 2005 found that implementation has not met expectations. Particularly absent, peers noted, was public awareness of its provisions.

The government agreed, responding that it shared the "House of Lords' concern at the lack of awareness of the Mental Capacity Act", giving everyone a responsibility to raise it.

A central provision of the Act was the introduction of lasting power of attorney to replace enduring powers of attorney.

There are two types of lasting power: one for health and welfare and another for property and financial affairs. It was noted by the Lords that low levels of awareness about either had affected implementation. Peers stated bluntly that "awareness needs to be raised among the general public of the benefits of lasting powers of attorney, in order to encourage greater take-up, especially for health and welfare matters".

The problems begin for many with the actual drafting. Unlike the old enduring powers of attorney, which were a straightforward four pages, this is a more daunting eleven or twelve page form, requiring the donor to identify one or more attorney's, and then decide how they are going to appoint them; jointly, jointly and severally, jointly for some matters and jointly and severally for others.

The form asks you to identify someone to be your certificate provider, and someone to be notified of the registration of the form. The donor can insert restrictions and guidance, although should be warned that any restriction is closely analysed. Anything considered to make the document unworkable means the form will be rejected. So, hardly enticing.

All of this is before tackling the separate and lengthy registration form, which must be registered with the Office of the Public Guardian. One significant problem is in trying to find a certificate provider. The most likely candidate, the donor's GP, will refuse, hiding behind suggestions they don't really know the donor. In fact one of the recommendations the House of Lords report makes is that there should be training for GPs on the Mental Capacity Act.

Once a lasting power of attorney has been signed and registered, as a practitioner, I find the next hurdle is getting a bank to recognise it. We had a recent case whereby in trying to get an enduring power of attorney registered, the bank lost all the identification documents for the attorney.

The delay caused by the loss of this information and subsequent failure to get the power of attorney registered, promptly meant cheques signed by the attorney were not honoured. It proved impossible to find someone sensible to talk to about this at the bank and greatly increased costs. This example is one that is no doubt echoed by other advisors, and demonstrates the need for adequate training at branch level about powers of attorney.

Lasting powers of attorney for health and welfare can only be used in the event that you lose capacity. The House of Lords report noted that advance decisions to refuse treatment are an essential means for allowing individuals to determine their care, should they lose capacity, but they need to be made aware that this is possible.

The Mental Capacity Act has introduced a means to protect the needs of the most vulnerable, but it does need to be understood, and the benefits and uses of lasting powers of attorney properly explained. In my experience, the gap between the Act's intentions and the reality can still leave much to be desired. Education of all those involved, whether health care professionals, banking staff or investment managers should be paramount.

Caroline Cook is a senior associate at Wedlake Bell

She writes the regular comment on inheritance in Private Client Adviser