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Lasting Powers of Attorney: Time For Reform?

What is an LPA?

A Lasting Power of Attorney (LPA), gives you the legal ability to nominate someone you trust to make decisions on your behalf.

There are two types of LPA: those for Property and Financial Affairs (LPAF) and those for Health and Care Decisions (LPAH).

Both types allow you to choose who makes decisions on your behalf when you lack mental capacity to make decisions yourself, and the LPA must be completed in advance of you losing capacity.

Current rules for LPAs

To make an LPA you first have to choose an Attorney or Attorneys and then complete a 20 page form – one for an LPAF and one for an LPAH. This can be done on paper or online. You can make an LPA online or using paper forms. Either way, you need to get other people to physically sign the forms, including the attorneys and witnesses.

They must be signed in a strict order, and you need to have someone called a Certificate Provider who certifies that you understand the nature and contents of what you are signing. They can be a Professional or someone that has known you for at least 2 years.

LPAs must also be registered with the Office of the Public Guardian before they can be used by your Attorneys which can take up to 20 weeks. There is no fast-track service.

Reform of the LPA system

On 20 July 2021, the Ministry of Justice announced it would undertake a 12-week consultation of the current system for making LPAs. As part of the planned reform, the Government wants to combat fraud and abuse by handing over more power to the Office of the Public Guardian.

In addition, the Ministry of Justice wants to explore the use of technology in the process of witnessing and submitting LPAs, to speed up the service and improve access. Part of this includes consultation on a new urgent LPA service for those at risk of losing capacity who require an LPA quickly. It is hoped these reforms will also prevent more LPAs being rejected due to avoidable errors and will also change how people can make objections to an LPA.

Next steps?

Although still subject to consultation at this stage, it is hoped these measures will make it easier and faster for people to put LPAs in place, reflecting how important these documents can be. Any reforms, however, are likely to take considerable time to be implemented.

How we can help

Whilst we await future changes to the system it is important if you are considering LPAs to ensure you act now – once you have lost capacity it is not possible to register the LPA and the opportunity for the protection the LPAs offer will be lost.

To find out more information about our LPA related services and how we can help, please contact our team: