A lasting power of attorney is a legal document that gives someone you trust the power to make decisions on your behalf should you lose the capacity to do so yourself. They are usually arranged for the elderly, people going into long-term care and those with serious medical conditions.
A new government consultation promises changes to the rules on making a lasting power of attorney.
Find out how these changes could affect you. Below, we explain:
- Types of lasting power of attorney
- Understanding lasting power of attorney property and financial affairs
- Who can be a lasting power of attorney?
What are the changes to lasting power of attorney rules?
Lasting power of attorney was introduced in 2007 to replace a similar legal document called enduring power of attorney.
There are two types:
- A lasting power of attorney (LPA) for property and financial affairs
- An LPA for health and care
Now the government wants to shake up the rules so that it’s easier to register an LPA online.
The proposed changes in the modernising lasting powers of attorney consultation include:
- New and improved safeguards against fraud and abuse
- Lasting power of attorney forms will be available online and in paper format
- Making it possible to witness a lasting power of attorney online
- Changes to the rules on who can object and why.
Preventing lasting power of attorney fraud and abuse
The person who takes on the power to make decisions for someone else is called an attorney. There can be more than one attorney. The person who gives away their decision-making rights is called a donor.
With a lasting power of attorney for property and financial affairs, the attorney has the power to:
- Control the donor’s bank accounts
- Deal with investments
- Receive payments from their pensions or benefits and sell their home
There is the potential for fraud or abuse, especially since there are few restrictions on who can be an attorney.
Anyone over the age of 18 who has the mental capacity to make decisions can be an attorney. Someone who is bankrupt may not be allowed to have power of attorney.
Under the new rules, identity checks on attorneys will be introduced. And the registration process can be delayed or stopped if concerns are raised. Potentially, someone who has prior convictions will not be allowed to be an attorney.
An LPA is registered with the Office of the Public Guardian (OPG).
Currently, the OPG relies on third parties to raise concerns about abuse of lasting power of attorney. But the changes include powers to foresee and prevent issues that aren’t flagged up by third parties.
Applications for lasting powers of attorney online
So far, the whole process has been done on paper. But the increasing number of people creating lasting powers of attorney means the OPG receives 19 million pieces of paper in a single year!
With the new changes, making an LPA can be done online – including the witnessing.
Paper copies of the LPA forms will still be available for those who are unable to use the internet.
Changes to witnessing when making a lasting power of attorney
A witness is the person who watches the attorney, or joint attorneys, sign the LPA documents – and then signs them too.
The government is examining whether witnessing could be done electronically through witnesses signing digital documents. However, safeguarding still needs to be a priority.
Changes to a lasting power of attorney
It is possible to object to the creation of an LPA. For example, if you think the donor was pressured into agreeing to it or the attorney lacks the mental capacity to carry out their duties.
But there will be changes to who is allowed to raise objections. Currently, only the attorneys themselves, the donor or “a person to be told” about the LPA can object. In future, anyone with concerns will be able to object to the OPG.
Currently, there is a four-week period where people can raise objections to the lasting power of attorney.
The problem is, the four-week rule doesn’t take account of any deterioration in the donor’s condition.
It also means there can be delays in making important decisions as the attorney isn’t able to act on behalf of the donor until registration is complete.
The four-week period will be scrapped. So anyone can object at any point from the start of the application to when it is registered.
More on lasting powers of attorney
You may have more questions about LPAs and managing your loved one’s financial affairs, so read our full guide: Lasting power of attorney: why it’s important to set one up.
What are the types of lasting power of attorney?
There are two types: lasting power of attorney for health and welfare, and lasting power of attorney for property and financial affairs.
The LPA for health and welfare gives the attorney the right to make decisions about things such as:
- Where the donor lives
- What kind of medical care they receive
- What their daily routine of washing, eating and sleeping is like
- The medications they take
In some cases the two kinds of lasting power of attorney are created at the same time, so that all aspects of the donor’s life can be managed.
The attorney for health and welfare may need money to spend on the donor’s care – for adapting their property, say, or paying for a haircut.
Which one you choose, or whether you do both, depends on what help your loved one needs.
Do I need a lasting power of attorney if I have an enduring power of attorney?
Enduring power of attorney (EPA) was in place from 1985 until it was replaced by the LPA on October 1, 2007.
EPAs only cover decisions about property and finances, not health or welfare decisions.
If you have a valid enduring power of attorney that was created before October 1, 2007, it can still be used. You only need to create an LPA if you want to make changes to the EPA.
You may want to consider creating a lasting power of attorney for health and welfare if you have an EPA.
This article courtesy of The Times