Up to speed

From 1 July 2015, new forms will be used to create a Lasting Powers of Attorney (LPA) in England and Wales. These forms amalgamate the instruments for making and registering an LPA. The existing LPA forms (introduced in 2009) can still be executed until 1 January 2016.

The new forms are quite different, not just by virtue of having the registration document included, but in some more subtle ways. I'm not sure that they will do away with my main bugbear (namely having to ask ill and frail clients to do at least three and sometimes, as many as 11 signatures on the trot) but will they be easier to work through?

The presentation of the forms is less 'busy', and there are helpful pointers that refer to separate guidance. While the inclusion of the registration pages has made the LPAs longer, a lot of the extra pages and duplication of the LPA002 have been removed. The LPA002 always had space for five names in the notification section, even where no-one at all was receiving notice.

Progressive changes

A positive development is that the form contains space for four attorneys and two replacements, without having to move on to any continuation sheet.
For many clients, this will reduce the number of signatures required, with no A1s having to be signed just to get a second replacement included.

It will also reduce the potential for registration applications being rejected, due to the A1 being overlooked at signing sessions (not that this has ever happened to me, of course)

Guidance on when and how replacement attorneys can act has been built in to the LPAs. If a donor has more than one replacement they must act jointly, regardless of how any original attorneys were appointed, unless the power says differently.

The property and financial affairs LPA has a new section where the donor has to state whether the LPA should come in to force on registration, or only on incapacity. Having this clarity on the face of the document is excellent, especially for financial institutions and, the notes include a warning about how limiting the LPA will make it less useful.

There is a strong feeling throughout the forms that early registration is being promoted and encouraged, and I don't think that is a bad thing.

There is no requirement to have two certificate providers if no-one is notified when the LPA is registered. The donor can choose a person to receive notice if they want, but they won't be obliged to treat notification as a hoop jumping exercise in order to avoid having to use two certificate providers.

I don't know if I was alone in nominating other members of the firm to receive notice in cases where the donor's didn't have anyone in mind, but it is a waste of time and paper and, doesn't actually offer any protection to the client. So this development gets a thumbs up from me.

The certificate provider, while having to act on either the knowledge or professional qualification basis, won't have to set out the basis on which they are acting in the LPA anymore. This may stop registration applications bouncing back because the detail provided isn't deemed sufficient, but does it in fact reduce the protection afforded to
the donor?

We won't find ourselves having to talk to clients about restrictions and guidance any more, as these have been replaced by 'preferences' and 'instructions'. The specific box that we would use to include a charging clause has vanished altogether, but if a professional attorney is being appointed, then this provision will need to be recorded in the instructions box.

Overall the new forms appear to be more straightforward. I do worry that if someone is trying to take advantage of a vulnerable donor, there are fewer stages at which this might be discovered.

Having said that, perhaps the notification and certificate provider requirements have not in fact stopped abuses from occurring, and more oversight of attorneys by the OPG is what is needed. 

Sofia Tayton is a partner and head of care and capacity at Lodders Solicitors

She writes the regular in-practice article on care and capacity for Private Client Adviser