Modernising LPA process is welcome but must be done properly, says lawyer

Government plans to digitize the outdated Lasting Power of Attorney (LPA) process have been welcomed by lawyers who say it has been difficult to manage registrations during lockdown periods.  

According to insurance providers Canada Life registrations fell by 26.5% during 2020-21 as restrictions made the LPA process, which is largely paper-based, much more onerous.  

The Government has proposed measures to simplify and modernize the LPA application process and conducted a formal consultation examining how technology can be used to reform the process of witnessing, improving access, and speeding up the service, as well as proposing the widening of the OPG’s legal powers to check identities and stop or delay any registrations that raise concern. In addition, it looked at making the process for objecting to the registration of an LPA simpler to help stop potentially abusive LPAs. 

Anne Minihane, partner and private capital specialist at national law firm Clarke Willmott LLP, said: “LPAs indeed become practically difficult to make during lockdown periods because of the difficulty in witnessing signatures, especially for clients living in care homes.  

“New regulations were introduced to enable virtual witnessing of Wills but this did not apply to powers of attorney. It is the case that LPAs represent a more cost effective, less bureaucratic way of dealing with an incapable person’s financial affairs than the alternative which involves an application to the Court of Protection. We would therefore encourage all clients, both older and younger, to consider putting in place LPAs. 

“The consultation on modernising LPAs with the objective of making the process easier is a great step in the right direction. We welcome this review but modernisation but must not be at the cost of adequate protection against financial abuse.” 

There are two types of LPAs: financial, and health and welfare. You can choose to make one type or both. The financial LPA is used to give an attorney the power to make decisions about money and property and is capable of use once registered.  

Meanwhile a health and welfare LPA enables the attorney to deal with medical staff and social services care staff, as well as make decisions over your personal welfare, day-to-day routine healthcare and medical treatment but it can only be used after you have lost capacity.   

The total number of LPA registrations in 2020/21 totalled a little more than 635,000, split between 282,883 health and welfare and 353,745 property and finance LPAs. 

These figures stand in contrast to the number of LPA registrations in 2019/20, which totalled 866,272, a record high, split between 382,130 health and welfare and 484,142 property and financial registrations. 

Anne continued: “This is a vital legal document and the system needs improvement to reflect the gravity of it.  

“Banks often cause avoidable problems for people registering as attorneys and if someone becomes incapable without making an LPA, an application has to be made to the Court of Protection for a deputy to be appointed, which can be a long, drawn-out and expensive process. 

“However, LPAs are there to protect people first and foremost so sight must not be lost of that while simplifying the process for all involved.”  

Clarke Willmott has seven offices across the country in Birmingham, Bristol, Cardiff, London, Manchester, Southampton and Taunton.      

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