DATE PUBLISHED: 27 Jul 2021 LAST UPDATED: 12 May 2022

Consultation issued on Modernising Lasting Powers of Attorney (LPAs)

The Ministry of Justice (MOJ) has recently issued a consultation process on modernising the process of making Lasting Power of Attorney (LPA), in an effort to speed up the process and to promote making LPAs online.

Reading the consultation document, it is very apparent why the MOJ feels there is a need to change the system, as it throws up some very interesting statistics. For example, it is estimated that the Office of the Public Guardian (OPG), to where LPAs are sent for registration, handled around 920,000 LPA applications last year. Even more bewildering is that this means the OPG handled some 19 million sheets of A4 paper in the same period!

Some other statistics show why it is very important that you should get advice from a properly qualified lawyer when considering making a LPA. 19% of LPAs sent in by members of the public, rather than a solicitor, contained errors, with 15 % of the applications having errors relating to the witnessing formalities. These errors result in the applications being rejected, which then mean additional costs to re-submit the application.

There is also wide misunderstanding amongst those who have not sought legal advice as to the effect of making a LPA, but which has not been sent to the OPG for registration. Firstly, 41% of those who had made an LPA without legal advice had not registered them. This poses real risk in that the attorneys who are appointed are not able to act for the donor (the person who makes the LPA) until the LPA has been registered. Registration formalities can take up to 12 weeks, so this would mean if someone suddenly suffered from a condition where they needed their attorneys to manage their affairs, the attorneys could be waiting for up to 3 months before they had the powers they need.

The above statistic is perhaps due to the fact that 44% of those who make a LPA without getting advice do not appreciate that the LPA has to be registered before attorneys can assume their role.

The aim of the consultation is to obtain views on how a new system might work in practice. The document contains some very sound proposals, including streamlining the system of witnessing, and considering a ‘fast track’ option to register LPAs in situations where the LPA needs to be used urgently by the attorneys. The main concern would be to ensure that any new system maintains, or enhances, the protection offered to those who might be vulnerable to coercion or fraud, such protection currently being given by the LPA having to be signed by a Certificate Provider, a role which should ideally be performed by a qualified legal professional.

Whatever the changes bring, it will remain the case that you should obtain good advice before proceeding with such an important arrangement. If you would like to discuss this further, please contact our Partner and Solicitor, Chris Pemberton, via email or call 01929 507910.

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