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Changes to lasting power of attorney process put consumers at risk, solicitors warn

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Solicitors have warned that changes to the lasting power of attorney (LPA) registration process have left the system open to abuse and put consumers at risk.

Last month, the Office of the Public Guardian introduced a simplified LPA registration process in the hope that more people would appoint someone to look after their affairs if they were unable to do so. Currently, only around 15 per cent of people aged over-75 have one. However, solicitors Moore Blatch warn consumer safeguards have been lost as a result.

The firm expressed particular concern about a new ‘certification page’, which allows a third party certificate provider to sign a declaration, stating the donor understands what is being signed and no one has pressurised them into signing it.  However, there is no way of verifying whether the person signing this part of the form has the relevant qualifications to do so.

It also highlighted the removal of the need to notify third parties (such as next of kin) an LPA had been registered, thus removing a safety net whereby coercion or fraud may be identified.

The firm attributes the low take-up of LPAs to a general lack of awareness, a lack of willingness to accept one might need an LPA, and the perceived and actual complexity of putting one in place.

Common issues with the incorrect completion of an LPA include:

  • Incorrect use of potentially imprecise terms as definitive statements, such as ‘must’ or ‘shall’
  • Use of ambiguous phraseology which is open to debate where one or more attorneys are appointed
  • Incorrect or conflicting appointments of attorneys could prevent the effective or total ongoing management of a person’s financial affairs or decisions relating to their health and welfare;
  • Failure to take account of the likely future preparedness of attorneys whether it’s their own health, desire or ability to manage what can often be challenging emotional or financial decisions

Fiona Heald, head of court of protection at Moore Blatch, said: “We welcome any initiative that encourages people to put in place an LPA; however, simplification must not mean greater scope for fraud or abuse. Given the nature of an LPA, such abuse may never be discovered, especially where it is enacted for mental health reasons as the ‘applicant’ may never be in a position to expose the fraud.”

“LPAs are complex and many people still require legal advice as it is really very easy to get them wrong and many people do. The Office of Public Guardian does not have the resources to check if the Power will work; they only police those not made in accordance with legislation, so if someone makes an LPA with incorrect provisions which make it useless, it will still be registered. Unfortunately, people think if the LPA is registered it is all OK, but that is not the case, and they often find this out when it’s too late.”

For more information on why appointing an LPA matters, visit the guide.

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