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Powers of Attorney: great white hope?

02 September 2008

Last winter the Lasting Power of Attorney (LPA), the replacement to the Enduring Power of Attorney (EPA), was unveiled amid much fanfare and promises of a new and improved way to help those who became mentally or physically incapable.

However, eight months on and Camilla James, associate, wonders: is the LPA more white elephant than great white hope?

The LPA form itself is 25 pages long and while the government claimed that any member of the public could fill in the LPA forms without legal assistance, for most people it is proving both time-consuming and daunting.

Clients are having to wade through not only the actual LPA (Personal Welfare) and LPA (Property and Affairs) forms but having to contend with Notes on completing the LPA (Personal Welfare), Notes on completing the LPA (Property and Affairs), Notes for Donors, Notes for Attorneys and Practice Guidance notes as well as all the registration documents and accompanying notes to go with those.

From a solicitor’s point of view, the form is poorly worded, fails to provide enough space for such things as names and addresses and, in many cases, appendices need to be added to the already-lengthy form. The Office of the Public Guardian (OPG) has promised to address such issues – but not before October 2008.

An area of concern for clients is the time that it takes to register the LPA. We have found that on average an LPA takes nearly four months to be registered. During this pre-registration period the Attorneys are, in effect, in limbo as the LPA is worthless until it is registered.

Where the LPA is needed by someone who is physically incapable, we can offer to draft a general power of attorney to cover this period; however, when it is needed due to mental incapacity, there is not much that can be done until the LPA is registered. Our advice is that you should register your LPA immediately and leave the registered document in a safe place until it is needed.

Despite these concerns the LPA is not all bad. It allows for flexibility of wishes concerning attorneys and how they can act: together only, together and independently or together in some matters and independently in others. This can give peace of mind, for instance, when selling property the donor (the person creating the LPA) can ensure that all attorneys act together and, perhaps, in the case of everyday care such as paying the gas bill, only one attorney need act.

There is also the opportunity to appoint replacement attorneys so that if something were to happen to your original attorney(s) someone else would still be able to act on your behalf. Furthermore, the LPA allows for both the mentally and physically incapable to order their own affairs through the LPA, unlike the EPA, which only caters for mental incapability.

The LPA also allows for Attorneys to act at times when the donor may be incapacitated for a short period but they then will relinquish their powers once the donor has recovered – unlike the EPA which was far less flexible.

Yes, there have been teething problems. Yes, there is still some way to go.And, yes, the form is unwieldy but it looks as though it is here to stay. If you want to ensure that you have all your affairs in order, the LPA is the only feasible way of guaranteeing that something is in place in case you were unable to deal with your own financial affairs or medical treatment.