21 February 2023

Lasting Powers of Attorney (LPAs) are becoming increasingly important. As you get older, you can sign this document giving someone (an attorney) whom you know and trust the ability to make decisions about your life. That may be about money and finances, health and welfare or both. Then, as you get frailer and perhaps lose your mental faculties there will be someone in place who can make sensible decisions on your behalf in relation to health and welfare and they can act with your consent, should you need their support with your financial affairs.

In order for a Lasting Power of Attorney (“LPA”) to be activated, it needs to be registered at the Office of the Public Guardian (“OPG”). Until then, it is just a piece of paper you have signed.

A difficulty at the moment is that it often takes upward of six to eight months for the OPG to get round to dealing with your application and registering the LPA. Indeed, the OPG asks people not to ring up and enquire about progress at all for the first twenty weeks. In the 2021/22 financial year the backlog was over 160,000.

That can cause significant problems, particularly if there is an urgent need for, for example, a decision about going into a home and if there has to be money to be made available to pay for it, the sale of a property can be delayed.

A further difficulty that arises is that the LPA form is a very long one and it needs to be signed by the various people in the right order. First, the individual (donor) needs to sign the form and then a certificate provider has to sign. This is an additional check to review capacity and understanding of the LPA by the donor and to assess if there has been any pressure exerted on them to sign. Third, the people who are going to be appointed as attorneys need to sign it, before it can be sent to the OPG for registration. The OPG are sticklers about the paperwork being signed and dated correctly and completed in the right order.

Of course, some of the people who are completing these LPAs are elderly and mistakes can happen. As a result, you may find that after several months waiting, you receive the LPA back with a note saying that it has been rejected. We can help avoid these risks.

The OPG are trying to staff up in order to improve matters, but progress is still slow.

In the meantime, the OPG is advocating the submission of LPAs online and has suggested that people think of other ways to organise their affairs without using a LPA, for example completing an informal letter setting out their wishes and intentions, providing a copy of that to their GP, signing authorities in favour of the bank and so on.

This leaves elderly and vulnerable people in a very difficult situation. LPAs are the better option as they are comprehensive and clear. If you think that you will need to use your LPA sooner rather than later, register it today; and if you need to use your LPA now, hope that you started the process to register it a year ago!