New Lasting Power of Attorney documents: are they simplified and less protected?

Year Published: 2015

Since Lasting Power of Attorneys (LPAs) were introduced by the Mental Capacity Act 2005, there have been several versions of the forms. The first was so long that the individual making the document (the donor) would probably have forgotten what was on the first page by the time they reached the last page. The second was reduced to 11 or 12 pages (depending on the number of attorneys appointed) but there were still additional forms to complete for the registration.

The third was launched on the 1 July 2015 and they are now 20 pages including the sections for the application to register. The main changes include extra boxes for donors who want to appoint more than two attorneys, additional notes and warnings about the way in which the attorneys are appointed and when the document is to be used (in the case of property and financial affairs).

To make the form more user friendly two key aspects have been removed.

The first is the requirement to have at least one ‘person to be told’ (now called ‘person to notify’). A person to notify is a person the donor would stipulate to be informed when the LPA is being registered so that they can raise any concerns they have about the person(s) being appointed to act as attorney(s). The person performing this role could not be an attorney.

Previously, in the event that the donor did not have a person to be told, a second ‘certificate provider’ (a person who signs to confirm that the donor understands what they are doing, that they have not lost mental capacity and have not been forced to make the document) would be required but this is no longer the case and therefore removes a layer of security. We, as solicitors, would still encourage donors to consider appointing an independent person to notify.

The second is the section to be signed off by the certificate provider. Previously, the form would require the person to state how they qualify to act in that capacity, but there appears to be no requirement to prove that the person is qualified to make that judgement.

Both the roles of the person to notify and certificate provider were introduced when the old Enduring Power of Attorneys were replaced however, both roles now appear to have been diminished in importance when the very reason for them being introduced in the first place was additional safeguards for donors against fraud and abuse!

The new forms are ready and available for use from now however, those who are partially signed up on the old forms will have until the end of the year to complete them.

For more information on LPAs and any other wills and wealth planning matters, please contact our Wills & Wealth planning team on 01625 442148.

 

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