New Lasting Power of Attorney – Shorter but not necessarily simpler nor safer?
As from 1st July 2015 both the Property and Financial Affairs Lasting Power of Attorneys (LPAs) and Health and Welfare LPAs forms have been revised and, in particular, shortened. They are now only 20 pages long! The objective is to make it simpler and quicker to prepare and register LPAs.
If you are in the process of completing the current forms then there is a transitional period for completing them before 1st January 2016 although registration can be after this date.
The 1st key change is that each LPA now incorporates a section to apply to register the LPA rather than having to replicate much of the information completed in the LPA into a separate (and long) application form when the time comes to register it.
The 2nd key change is that the requirement to notify someone of the application to register the LPA has been removed and is now optional. However, the safeguard of requiring an independent Certificate Provider remains.
The 3rd key change is that there is now a requirement for only one Certificate Provider, even if you do not decide to notify anyone of the application to register the LPA.
While the laudable driver for these changes is to continue to encourage more and more people to prepare LPAs, “just in case…..”, by making the forms and the process for registration easier, such simplification can come with added risk.
Firstly, the accompanying guidance notes have also been simplified. As such, there is a risk of not appreciating the underlying significance of the options that are available for making each LPA particular to the individual’s circumstances and priorities. As in most things in life, the “devil is in the detail”. There is simply no substitute for completing the LPAs with the benefit of advice from an experienced and suitably qualified specialist. Even if the end result appears simple there is value in ensuring that the choices that are made are in the knowledge of the full range of options that are available and the consequences of each option.
Drafting LPAs is an unregulated area of the legal market and it is advisable to utilise the experience and advice of a suitably qualified lawyer. Clients should consider “Are they legally qualified?” “Do they have specialist accreditation” (Society of Trusts and Estate Practitioners, Solicitors for the Elderly) and “do they have experience relevant to this particular area of law including how the LPAs operate in real life situations?”
Secondly, watch this space. There has been significant debate over an additional change that was possibly going to be introduced. This was that the application to register the LPA could all be done electronically so that there was no requirement for an original signature. This could pose significant risk and undermine the work that has gone in to building safeguards that were necessary due to the risks of the old Enduring Power of Attorneys.
If you would like to view the revised LPA forms then they you can find them at the end of the Statutory Instrument at http://www.legislation.gov.uk/uksi/2015/899/made/data.pdf
At Bennet Griffin, we have a specialist team of advisers who focus our enthusiasm and expertise in ensuring that our clients do not leave planning their legal affairs to chance but empower them to make informed choices.
How we could be of value to you:
- If you have an Enduring Power of Attorney, we can review whether it is still the most appropriate authority for you. For example, you may benefit from including substitute Attorneys in the new LPAs.
- If you are completing the LPAs yourself, then we can offer fixed fee advice on ensuring that you are making informed decisions on your options and fixed fee advice to act as your Witness and Certificate Provider
- If you have an Advance Directive (sometimes referred to as a “Living Will”) we can help you consider whether the option of a Health and Welfare LPA would be more beneficial to you and your family
- If you are Attorney for a loved one, we can advise on the registration process for Enduring Power of Attorneys, the scope of your authority with regard to financial decisions and care decisions
- If you are concerned for someone who seems at risk and does not have a Power of Attorney we can advise on whether LPAs remain an option or whether an application to the Court of Protection for Deputyship would be more appropriate
Please call or email Ian Macara in confidence to explore how we can be of assistance to you and your family in planning a more secure future or reacting to a crisis of health.
Article by Ian Macara – Partner and Head of the Private Client team
The information contained in this article is for general guidance only and is not intended to be legal advice. Professional advice should always be taken on the application of the law in any particular situation.