Lasting Powers of Attorney to be simplified

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Broomhead & Saul welcomes Justice Minister Alex Chalk’s decision, announced this morning, to reform the unnecessarily complicated process of setting up a Lasting Power of Attorney (LPA). 

A Lasting Power of Attorney is a legal document that authorises someone (an attorney) to make decisions about your welfare, your money or property.  

They tend to be mostly used by people in anticipation of old age: to empower someone they know and trust to make decisions in the event that they eventually lose capacity, perhaps in extreme old age or through ill health (temporarily or permanently). 

Lasting Powers of Attorney are not just for the elderly

Lasting Powers of Attorney are a critical precautionary step that ought to taken by every adult – especially if they have dependents. 

The harrowing experience earlier this year of Good Morning Britain presenter Kate Garraway illustrates why even young and healthy adults need to set up Lasting Powers Of Attorney. 

When Kate’s husband, Derek, was hospitalised after falling dangerously ill with Covid-19, because they had no Lasting Powers in place she was unable to access his bank account; his credit card accounts or their joint savings, nor could she refinance their mortgage.

It follows therefore that the process of setting up a Lasting Power of Attorney should be made as simple as possible in a manner consistent with protecting the vulnerable from undue influence and fraud.

Officious officials

The Office of the Public Guardian’s record in discharging its limited statutory responsibilities associated with registering Lasting Powers of Attorney has been a mixed one. 

Its role is strictly prescribed by statute (The Mental Capacity Act 2005 and The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007).  It’s simple duty is to register validly completed Lasting Powers of Attorney. It has no power to add further procedural complications to an already over complicated process. 

Unfortunately, during the Covid 19 crisis this is precisely what it did when it wrongly insisted in its official Guidance that a donee’s signature must made in the physical presence of witnesses.  This prevented many elderly and vulnerable people from exercising their constitutional entitlement to complete their Lasting Powers of Attorney in Covid-19 safely from a distance using video conferencing technology to manifest their witnesses’ presence. If video witnessing is accepted as a valid way of witnessing Lasting Powers of Attorney in several foreign common law jurisictions which share near identical regulatory provisions, then why not here?

When Dr Nicholas Bevan wrote to the Office of the Public Guardian to inform them that their Guidance was both unhelpful and wrong in law, his email was ignored.  It took the threat of escalating the matter with the Minister direct to receive any response.  Even then the reply turned out to be rather high handed. They baldly stated their disagreement and refused to engage in any further dialogue. We were told that any further correspondence on this topic would be ignored; not a particularly helpful or constructive attitude for any publicly funded body to take, we think.

Quis custodiet ipsos custodies

(who will guard us from our guardians!)

Had we been approached by a self-isolating client needing to complete their paperwork in safety, then we would not have hesitated to bring judicial review proceedings to challenge this quango’s ultra vires actions.  Unfortunately, the right to apply for judicial review is increasingly something only the super rich can afford to invoke.

Consequently this writer believes that reform is also needed to ensure that the Office of the Public Guardian actions stay within the remit of their statutory authority in future.

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