By Alex Truesdale, Founder, Alex Truesdale Wills
2020’s pandemic saw an explosive rise in the demand for LPAs – instruments appointing trusted relatives, friends or professionals to take decisions on the donor’s behalf upon a loss of mental capacity. Put simply, mental capacity is the ability of an adult to self-determine; to make and communicate decisions about how we live our lives. Mental capacity can be lost in a variety of scenarios. This risk grows as we age: however, whilst dementia, Alzheimer’s and disruptive medical incidents such as stroke or seizure are the most obvious causes, acquired brain injury from a traumatic event such as a fall, a road traffic accident or a blow to the head can rob an individual of his or her powers of self-governance at any time.
The havoc Covid wrought on the working practices of the Office of the Public Guardian – the government department which processes LPA registration- together with demand outstripping supply, has led to huge delays in the turnaround times for registered LPAs. This caused considerable hardship to many who found out the hard way that whilst it is never too early to put LPAs in place, it is all too often too late. Without LPAs the medical team, not the family, decides the patient’s care; assets are frozen – even if owned jointly; and it can take months to obtain deputyship orders to start making decisions once more – except that the court will usually appoint solicitors to do so, all at considerable cost to the client.
Partly in reaction to this and also as part of the government’s wider digitalisation strategy, the Powers of Attorney Act 2023 will introduce a new online LPA creation and application system. The Act includes further safeguards against fraud and abuse, aims to simplify and accelerate the application process and is intended to combat delays in registration. Central to this will be the role of the certificate provider, which has come under increased scrutiny after a recent ruling in the Court of Protection made the point that an LPA may be susceptible to challenge if it cannot be proven that it was correctly certified. Evidence of the reasoning of the certificate provider as well as the mere fact of certification will be just as crucial in future, whether under the new digital scheme or for LPAs made using the existing paper based scheme.
However, a pilot scheme has yet to be rolled out, and it now seems likely that the new digitised system – which was originally due to be implemented in mid-2024 – will not be in force until early next year, with a “hybrid” paper process in place to assist those with accessibility issues. In the meantime, as an increasing proportion of OPG resource switches over to implementing the new system, further delays appear almost inevitable – so it would be prudent to advise clients:
- to apply now whilst a workable (if imperfect) system is still in place; and
- to use a professional as your certificate provider to minimise the risk of future challenge to the LPAs which, ironically, would come at the point where the donor would be incapable of mounting any resistance.
Whilst we should all have LPAs in place as part of a prudent financial plan, they are particularly relevant to clients who are embarking on later life financial / estate planning, whose documents may be out of date: old style Enduring Powers of Attorney are cumbersome to register and lack both flexibility and coverage. Non doms with assets here will need LPAs to cover England and Wales as the development and acceptance of a “global” LPA instrument is still some years away. And clients going through divorce or the dissolution of a civil partnership would be well advised to make fresh LPAs to ensure that their ex-partner or spouse can no longer have any influence over their health and financial affairs.
For an obligation free initial consultation to understand the benefits of LPAs for you and your clients please contact Alex Truesdale on 07887 946 557 / alex@alextruesdalewills.com or visit www.alextruesdalewills.com for more information.