Understanding Lasting Power of Attorney (LPA) Lasting Power of Attorney (“LPA”) is a legal document that allows a person (the donor) to give someone else (the attorney) the power to help them make decisions or take decisions on their behalf. There are two types of LPA: for property and financial affairs and for health and welfare. A donor can decide to make one or both types of LPA and choose an attorney or multiple attorneys (usually between one and four) while they have mental capacity. LPAs need to be registered with the Office of the Public Guardian (OPG) before they can be used. Registration of LPAs has increased dramatically since the pandemic. Ministry of Justice figures show that registration was up by 19% during 2022, but the process of making a lasting power of attorney is still mainly paper based through a system that is over 30 years old. Legal Changes The Powers of Attorney Act 2023 was granted Royal Assent in September 2023. Section 3 of the Powers of Attorney Act 1971 was amended to come into effect from 18 November 2023 to add Chartered Legal Executives to those who can certify copies of LPAs. The biggest changes will be introduced by Regulations which are expected to come into force in Autumn 2024, with the aim to modernise the process and make it safer and faster. The main changes will be as follows: Allow for LPAs to be made digitally. This will speed up registration by picking up mistakes earlier and allowing these to be fixed online. Moving to a digital system is undoubtedly a welcome improvement but it is also important that those who need to make an LPA via the paper process are still supported. The Government has reassured that a paper process will be maintained for those who are unable to use the internet. ID checks will be required for those applying for an LPA: the donor, attorneys and certificate providers. Although this step may add an extra layer to the process, ultimately, it will add an extra element of security to protect those who are vulnerable from abuse or fraud. Only the donor will be able to register the LPA. This will ensure that the donor has capacity when registering the LPA and registration will be made when the LPA is made and not delayed as per the current system. Any errors/problems can be picked up at an early stage when the donor retains capacity and rectification is possible. Widen the group of people who can make an objection. Third parties will be able to object to the OPG (for example, a Local Authority with safeguarding concerns) without the need to make an application to the Court of Protection. Simplified objection process. At the moment, a person who has been notified of the LPA can object to registration with the OPG, who will then inform the Court of Protection. The Court will order the OPG to start an investigation and will ultimately decide whether the LPA can or cannot be registered. This process is lengthy and takes up a lot of the Court’s time and resources. Under the new process, objections will be dealt with directly by the OPG, and if there is no evidence supporting the objections, the LPA will be registered. The route to the Court will still be available to anyone who disagrees with the decision of the OPG, by way of an ‘appeal’ process. Whilst these reforms are welcome, and ideally the changes will benefit those who are most vulnerable, expedite the process and reduce the work of the Court, it is important that we continue to look at ways to improve the system and ensure that it is fit for purpose. If you are interested in arranging an LPA for yourself, or supporting a family member to do so, please get in touch with our Wills, Trusts and Probate team, who will be happy to assist you. Our Court of Protection team at Boyes Turner has the specialist knowledge to support and advise clients in the most inclusive and person-centred way possible. For further information, please contact the Court of Protection team on 0800 124 4845 or email us.
