Release of new Lasting Power of Attorney forms

By Genevieve Powrie, Probate Solicitor

The new forms released by the Office of the Public Guardian on 1st October 2009 have been welcomed by members of the legal profession, who consider them to be more user-friendly than their 2007 predecessors.

The 2007 Property and Affairs LPA form was 25 pages long and included an extra section or page for many eventualities, such as if the person making the LPA could not sign for themselves, or if they wished to appoint a “trust corporation” as their attorney. There was a 3 page section entirely for an “additional certificate provider”. This would only be required if the person concerned did not wish to notify anybody that they were going to register the Lasting Power of Attorney (the document must be registered at the Office of the Public Guardian before it can be used by the Attorney). In this case, the person making the LPA (known as the “donor”) needs to have an extra “certificate provider”, who is somebody who can certify that the donor understood exactly what power they were giving away with the LPA, and to whom. The majority of people were happy to nominate a friend or family member to be notified of the application, which is a simpler process than finding an additional certificate provider, and therefore the 3 pages included in the LPA document for the additional certificate provider were almost always redundant.

Almost every possibility regarding a donor’s wishes were dealt with in the old forms with a designated section in the form which could be filled in if applicable, leading to extra blank pages in the form. However, the vast majority of people did not require these specialist sections of the forms and they would therefore have to cross through them to show that they did not apply. It was a case of one (big) size fits all! This was clearly not ideal.

The new basic forms are only 12 pages long and any unusual requirements that a client may have can be dealt with by using specialist continuation sheets that can be added to the basic form. In the majority of cases, the basic form will be able to achieve everything that the client wishes. This means that most LPAs will be more straightforward to produce, which is likely to bring legal costs down as solicitors will not need to spend so much time crossing through and explaining unnecessary pages!

It is hoped that a further advantage of the 2009 forms is that LPAs will now become accessible to more people. A person making a lasting power of attorney needs to understand all of the information that they have provided in the form, as well as the key aspects of the power that they are giving, such as when it will be able to be used, when it can be revoked, what powers the attorney will have, and what areas the attorney has authority to take decisions in. For example, if a person is making a property and affairs power of attorney, they will need to understand what property or assets they own. They also need to understand the basic principles of the Mental Capacity Act 2005, because these principles govern how their attorney is allowed to act on their behalf. For example, an attorney must always act in the best interests of the donor. There is therefore a large amount of information that donor needs to understand and remember for a long enough time to consider and weigh up their options when making an LPA. This has been too difficult for some people, given the length of the forms and the time it takes to understand them. It is expected that the information presented in the short new forms will be easier for clients to remember for long enough to be able to understand everything that they need to understand in order to sign the document. This means that some people who may have been unable to make a Lasting Power of Attorney using the 2007 forms will now be able to do so.

If you are considering making a Lasting Power of Attorney, further information can be found on the website of the Office of the Public Guardian : http://www.publicguardian.gov.uk/.

If you would like legal assistance, we would be more than happy to help. Please contact our LPA coordinator, Janet Quinn, on 01625 442144 to arrange an appointment with one of our solicitors.