Changes to Lasting Powers of Attorney

A Lasting Power of Attorney is where someone gives a person they trust, the legal authority to make decisions about their health and welfare or financial affairs on their behalf, if they lack mental capacity at some time in the future or no longer wish to make decisions for themselves.

New style Lasting Powers of Attorney were introduced by the Office of the Public Guardian at the beginning of July to try and encourage people to take a more proactive approach in preparing these documents for themselves.

There are two types of Lasting Powers of Attorney: one covering decisions relating to finance and property affairs and the other, for decisions relating to health and welfare.

The documents allow someone to appoint one or several 'attorneys' to take these decisions for them, usually due to an illness or accident which leaves them mentally or physically unable to make decisions for themselves.

Under the new forms, there is no longer a requirement for a second certificate provider. However, other safeguards stay the same, such as the need for an independent witness and someone certifying that the person has capacity. The requirement for a signature and witness for the life sustaining treatment section has stayed the same.

Erika Sinclair, a senior solicitor with law firm Andrew Jackson, commented on the changes, saying: “The process, and the forms, whilst still not straightforward, have been simplified. It is no longer a requirement to notify another individual of the registration of these documents and only one 'certificate provider' is required (a certificate provider is an impartial person who certifies that you know what you're doing and you understand the significance of the document). The new forms are also considerably shorter than the old forms too.

“Whilst this is good news, it should not be forgotten that these are incredibly powerful documents which allow someone else to take decisions for you and could, in the wrong hands, facilitate abuse and fraud.”

She highlights the apparent increase in fraud against elderly relatives in the UK and warns people to think long and hard before choosing who they are giving power of attorney to.

“According to a recent KPMG survey, fraud committed within families increased fivefold last year. In one case a man stole his mother's £600,000 savings after realising he was not the main recipient in her will. In another, a woman stole her father's savings after being granted Power of Attorney, leaving his bills unpaid. As the survey points out, with greater life expectancy there are more examples to draw upon where people are choosing to turn to fraudulent means to ensure they receive their inheritance.

“You should take advice before embarking upon the preparation of these documents, to ensure all involved are aware of their legal responsibilities and obligations and that the 'right' people are appointed to support you. This can be a technical area of the law - the official guide alone, published by the Office of the Public Guardian, is 48 pages long with links and references to more detailed guidance elsewhere,” she said.

She suggests appointing a legally qualified professional to advise “on the importance of having these documents and to also point out the risks” adding: “They should also assist you in identifying cases where there is a greater risk of undue influence or pressure from third parties. Finally, they should steer you through what can be a technically legal process”.

For more information go to https://www.gov.uk/power-of-attorney/overview