User-friendly LPA Process Could put Vulnerable People at Risk of Abuse
2015 on track for record year as more people than ever appoint guardians. The simplified Lasting Power of Attorney system has removed vital safeguards and could lead to abuse of mentally incapacitated individuals, a specialist lawyer has warned. The caution comes as figures reveal 2015 could be a record year for the number of people appointing legal guardians of their health and assets in case of an emergency.
The new, simplified process was introduced in England and Wales in July to encourage more people to put in place a Lasting Power of Attorney (LPA). These legal documents nominate ‘attorneys’ to make decisions for an individual if they lose mental capacity to do so themselves. Traditionally, the attorney has included family members as well as trusted professional advisers.
According to figures obtained by Simpson Millar from the Ministry of Justice, uptake of the two types of LPAs – Property & Finance and Health & Welfare – more than doubled between 2010 and 2014 from 161,000 to 358,000. Both look set to increase again in 2015 for the fifth successive year.
|Year ||Property & Finance LPAs ||Health & Welfare LPAs |
|2010 ||129,889 ||31,990 |
|2011 ||148,774 ||43,065 |
|2012 ||171,549 ||56,687 |
|2013 ||197,646 ||75,945 |
|2014 ||244,232 ||114,451 |
|2015 up to 31 July ||192,022 ||100,728 |
Without an LPA, the only option open to the family of someone who has lost mental capacity is applying to the Court of Protection for a Deputyship Order, which is a costly, complex and time consuming process.
But Sian Thompson, Partner and Head of Simpson Millar’s Court of Protection, Wills, Probate & Trusts department, is concerned about the potential risk of abuse: "Any sensible measure that promotes greater use of LPAs is to be welcomed. However, the new online application process makes it far easier for an individual to be coerced or manipulated into signing over their assets and healthcare choices to a, potentially, unscrupulous third party.
“The new forms are very much geared towards setting up an LPA without the need to seek legal advice at all. Although this reduces the opportunity for law firms to charge disproportionate fees, it also removes the necessity for individuals to take professional advice before deciding the exact details of the LPA.”
In addition, it is no longer necessary to ‘notify’ an independent third party about the intention to register an LPA.
“Under the new process, anyone who has known the individual for two years or more can certify the arrangement. The complete absence of an independent third party means no one is there to assess the capacity of the individual taking out the LPA, and whether they are under any sort of pressure at the time. This is hugely worrying and could easily lead to abuse.”
If an individual has already lost mental capacity, an LPA cannot be put in place and the family must instead apply to the Court of Protection to obtain a Deputyship Order which is both costly and time consuming. Ministry of Justice figures show that 26,272 Court of Protection applications were made in 2014, compared with 22,583 in 2010.
Sian commented: “Few people like to think about the day they might lose the mental capacity to make important decisions or even cope with day-to-day life without assistance from a third party. Clearly, these latest figures illustrate just how many people end up in exactly that situation without having put in place the necessary legal arrangements that mean close relatives or trusted attorneys can help manage their affairs.”
According to Sian, a growing number of elderly people struggle to find someone who is trustworthy enough to look after their property, finances and healthcare decisions. “Only around 15 per cent of people aged over 75 have an LPA in place and, in my experience, many of those simply don’t have anyone they feel they can trust. I have recently advised several elderly people who have been putting off setting up an LPA because they are worried about a potential family rift when they appoint one relative as the attorney and not another.”
Sian concluded: “It’s a sobering reality, but anyone can be vulnerable to mental impairment and putting in place a professionally supervised and implemented LPA gives people of all ages the peace of mind of knowing their affairs will be properly managed if the worst should happen.”