Lasting Powers of Attorney – 10 years old – still a tweenager?

Lasting Powers of Attorney (LPA) celebrate their 10th birthday this week and that has led me to reflect on whether they are actually any better than the Enduring Powers of Attorney (EPA) that they replaced.

The most obvious benefit it that you can appoint someone to make Health and Welfare decisions as well as Property and Financial decisions, so that your loved ones can make decisions about medical treatment on your behalf when you can’t, rather than having to rely on a best interests decision taken by the medical team, which has allowed families to remain in control.

However, the reason behind changing the system was to provide more protection for people who put the documents in place and whilst at the beginning I thought the new system achieved that, with the changes that have happened since the initial introduction of LPAs, I’m not convinced that there is any more protection now than there was 10 years ago.

It is true that the document now needs to be registered to be used at all, whereas an EPA doesn’t have to be registered until the person loses capacity.  But all that this means is that the OPG have a record of the LPAs that are registered and if someone has a complaint about how the attorney is acting they have someone to complain to.

However, the only check of whether someone has the capacity to make an LPA or isn’t being forced to put one in place is the signature of a person who has known the donor for at least 2 years.  There is nothing to stop an unscrupulous child getting their vulnerable mum to sign an LPA in their favour and asking the neighbour to “just sign there”. 

The person signing has to certify that “the donor understood the purpose of this LPA and the scope of the authority conferred by it”.  Having seen hundreds of attorneys think that they can gift away their parents’ money to avoid having to pay for care, I doubt very much whether they or the person certifying actually understand the scope of the authority an attorney has, unless there has been a solicitor involved in putting the LPA in place.

Proper safeguards, such as the certificate provider having to have healthcare or legal qualifications or there being a set list of relatives who must be notified of registration (as there still is with EPAs) would go a long way to reducing the growing number of financial abuse cases that are in the news.

But despite LPAs having so many weaknesses, I believe they are the best option people have for ensuring that decisions can be made for them if they lose metal capacity.  If both the donor and the attorneys are properly advised, an LPA can be a God send in an already difficult situation and can avoid the stress of having to deal with the delays and expense of the Court of Protection. 

So here’s to the next 10 years of Lasting Powers of Attorney.