Family Law

The new Lasting Power of Attorney (LPA) process, provided by the Office of the Public Guardian last month, removes certain safeguards that could lead to abuse of the system, warns solicitors Moore Blatch.

The new process is intended to increase take-up of LPAs, which is woefully low, with only around 15% of people aged over 75 having one. However, because of the simplification, critical consumer safeguards have been lost.

Of greatest concern is the fact a certification page exists where a third party certificate provider signs to say that the donor understands what is being signed and that no one has pressurised them into signing it. However, there is now no way of checking whether the person who is signing this part of the form has the relevant qualifications to do so.

Second, is the removal of the need to notify third parties of the fact that a LPA has been registered, thus removing a safety net whereby coercion or fraud may be identified.

According to Moore Blatch, there are a number of reasons why the take-up of LPAs remains low, including a general lack of awareness of LPAs, a lack of willingness to accept that one might need an LPA, and the perceived and actual complexity of putting one in place.

Common issues with the incorrect completion of a Lasting Power of Attorney include:

• incorrect use of specific terminology such as the use of ‘must’ or ‘shall’ as a definitive statement;
• use of ambiguous phraseology that is open to debate where one or more attorneys are appointed;
• incorrect or conflicting appointments of attorneys that could prevent the effective or total ongoing management of a person’s financial affairs or decisions relating to their health and welfare;
• failure to take account of the likely future preparedness of attorneys whether it’s their own health, desire or ability to manage what can often be challenging emotional or financial decisions.

Fiona Heald, Head of the Court of Protection team at Moore Blatch solicitors, comments:

'We welcome any initiative that encourages people to put in place an LPA; however, simplification must not mean greater scope for fraud or abuse. Given the nature of an LPA, such abuse may never be discovered, especially where it is enacted for mental health reasons as the ‘applicant’ may never be in a position to expose the fraud.

LPAs are complex and many people still require legal advice as it is really very easy to get them wrong and many people do. The Office of Public Guardian does not have the resources to check if the Power will work; they only police those that are not made in accordance with the legislation, so if someone makes an LPA with incorrect provisions which make it useless, it will still be registered. Unfortunately, people think if the LPA is registered it is all OK, but that is not the case, and they often find this out when it’s too late.'