11 October 2021

Lasting Powers of Attorney – Don’t leave it until the last minute!

What is an LPA?

A Lasting Power of Attorney (LPA) is a legal document which allows a person (a Donee) to appoint someone (usually a family member or close friend) to manage their affairs should they lose the capacity to do so themselves.

There are two types of LPA to consider.

The first type is the Property and Financial Affairs LPA which allows Attorneys to manage payments from the Donee’s bank accounts and action any maintenance or sale of the Donee’s property.

The second type is the Health and Personal Welfare LPA which allows Attorneys to make important decisions about the Donee’s health and welfare, such as whether the Donee should have an operation and what care the Donee may require.

Property and Financial Affairs LPA can be used while someone has capacity, but a Health and Personal Welfare LPA can only be used when someone has lost capacity. It is also important to note that LPAs cannot be used until they have been registered with the Office of the Public Guardian.

What is all the fuss about?

According to the Alzheimer’s Society, over 1 million people will suffer from dementia by 2025. The rates are significantly higher in women than men.

There are currently around 850,000 people suffering with dementia in the UK. Around 209,600 will develop dementia this year (that is one every three minutes). One in six people over the age of 80 have dementia and around 70% of people in care homes with dementia or severe memory problems. There are currently over 42,000 people under the age of 65 with dementia in the UK.

Mental or physical incapacity can hit at any time and is not limited to realms of the elderly. People who have not yet drawn a pension could be incapacitated at anytime through illness or injury, so it is important to prepare for the unexpected.

It will not be possible for you to manage your affairs if you lose capacity. Your loved ones are likely to face long delays and great expense in applying to the Court of Protection to be able to gain access and control of your assets and finances if you do not have LPAs in place.

Timing is crucial

It is important to organise your LPAs whilst you are fit and healthy, so they are in place when you need them.

The Office of the Public Guardian are experiencing long delays in registering LPAs. At present, they are taking a minimum of 20 weeks to process LPA applications.

If you put off making your LPAs until the time they are actually needed, you will have to wait for the Office of the Public Guardian to register the documents before your Attorneys can use them.

If you put off making LPAs you also run the risk of losing the mental capacity to put them in place (for example, if you fall ill suddenly and do not regain capacity.)

Could Lasting Power of Attorneys be digitalised? 

A simple digital system to set up a Lasting Power of Attorney (LPA) could be introduced, but experts say that it is vital that sufficient safeguards are in place to protect elderly and vulnerable people from abuse.

What are the benefits of a digital system?

An LPA is an essential part of planning for the future and registrations have surged in recent years. At present, creating and registering an LPA involves a significant amount of paperwork, based on a system created over 30 years ago.

The Government is looking to both modernise and simplify the process by introducing a digital system. The new system will introduce a fast-track process to grant LPAs to individuals who need them urgently, for example, if someone’s health is deteriorating quickly. It currently takes around 12 weeks to register an LPA, which is challenging for those with a relative who has suffered a sudden change in their health or mental capacity.

What are the problems with introducing a digital system?

Whilst legal and financial experts have welcomed the proposed changes to the process for registering an LPA, some challenges have been identified. Firstly, a digital system without properly considered safeguards could mean that elderly or vulnerable people are targeted for abuse or coercion.

Justice Minister Alex Chalke stated:

‘An LPA is not just a piece of paper. It is a legal agreement that allows a person to set out their wishes and preferences and have peace of mind that these will be followed. The protections that exist in the LPA are based on decades, if not centuries, of tradition and legal case law. They’re based on known and trusted paper-based social conventions, such as signing and witnessing’

It is important to note that although many elderly people have adopted technology, there is still a large proportion who do not have access to a computer or smartphone.

How will the digital system work?

The Government would like to have LPAs digitally checked at the time they are made and sent for registration as soon as they have been executed.

A spokesperson said:

‘Our preferred option is to replace the witness with new safeguards that perform the same function.’

There are also plans to allow a person to make an objection to any LPA from the time the donor begins the process, right up until it is successfully registered.

The spokesperson added:

‘Our preferred option is not to introduce a dedicated service, as we do not believe it’s possible to create a faster service with a high enough level of safeguards that is not also overly complex.’If you would like any further information or would like to instruct us to assist you in making an LPA, please do not hesitate to contact us and our friendly, knowledgeable team will be more than happy to help.

Do we need a digital Lasting Power of Attorney service? Experts say yes, but not without proper safeguards.

What should I do next?

Plan for the unexpected and find out the importance of a Lasting Power of Attorney by speaking with our experienced team here at Howell Jones solicitors.

our lawyers deliver an excellent quality service, independently recognised by The Law Society and our many returning clients.

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