Lasting Power of Attorney (LPA) is an important form of advanced decision making giving people the option to assign a trusted person (or persons) to make decisions on their behalf should they ever lack capacity in the future.
However, the role of LPA is not always well understood, and has often been misapplied or even in some cases neglected by some professional teams who may lack sufficient training.
The process has also been exposed as being a little dated for the modern age, leading the government to hold a consultation in late 2021, with the report published in May of this year.
In today’s blog we look at some of the highlights from the report…
Purpose of the report
The government report reasserts that it is a legal right under the Mental Capacity Act to plan ahead for times where one might not have the mental capacity to make specific decisions – whether due to an accident or health condition. By assigning the role(s) of LPA, an individual can choose who they trust to make particular decisions in their Best Interests if needed.
By modernising the LPA system, the government seeks to align the process with the digital age, building additional safeguards into the system, while also increasing access and reducing risk of fraud or other forms of abuse in the system.
In total, 313 responses were received to the government consultation, of which there was a fairly even balance between members of the public (123) and professionals (132), while 53 were from organisations and 5 provided no specifics of a demographic nature.
Summary of proposals
Witnessing an application:
- Ongoing investigation into digital witnessing to evidence competition by the donor themselves.
- Considering combining the roles of certificate provider and witness.
- Further clarity of this role to be established through guidance, to ensure donor’s understanding of an LPA and safeguards in place.
- Questions were provided surrounding removal of delayed registration, continued investigation into the risks and benefits, alongside practicalities prior to a finalised response.
- Removed notification requirement for LPA competition.
- No urgent service provision will be constructed in order to ensure proper checks are completed, protecting all parties.
- Both a paper and digital application process will be made available moving forward.
Office of the Public Guardian (OPG):
- A broadening of power is being developed in terms of identity checks and remit.
- No suitability checks are to be added (e.g. criminal background checks).
- All objections are to go through the OPG to streamline processes and increase protection.
- The OPG can make referrals to the Court of Protection when necessary.
- Objection methods to be explored for during the process of application.
- Third party objections to be considered
- Statutory waiting period (“cooling off period”) within the objection process.
Access for solicitors:
- The government to move forward with an integrated digital LPA provision.
- Impact assessments of proposals are to continue.
At this stage, it remains unclear whether these changes will be sufficient to meet all of the requirements of the modernisation process.
The time-frames for some of these changes also remain unclear, despite proposed amendments to the Mental Capacity Act (2005). By which I refer to whether these will be included within the updated Code of Practice that is presently being consulted upon, or whether they will take some other form.
As such, there is ongoing speculation that other forms of development might be considered outside of the Mental Capacity Act (MCA) in terms of a Powers of Attorney Bill. This rather muddies the waters in terms of where the LPA role sits – whether it be a part of the MCA, or some other piece of legislation.
Whatever form the updates take, it can only be hoped that education and training will be promoted alongside these updates to help raise awareness and ensure that people’s rights are upheld and protected.