It is only in the early stages, but the Ministry of Justice (MOJ), together with the Office of the Public Guardian (OPG), has been seeking input from practitioners and other interested bodies as part of a new initiative to modernise the process of making a lasting power of attorney (LPA) in England and Wales.
LPAs were first introduced by the Mental Capacity Act 2005 and people have been able to make one since 1st October 2007. At that time, they replaced the old-style enduring power of attorney (EPA) as the document by which a person could appoint attorneys to make decisions on their behalf once they no longer have the mental capacity to make those decisions themselves.
Amongst other aspects of the current process, the MOJ is seeking opinions on the use of witnesses for the signatures of the donor and all attorneys, the option to notify a third party to help safeguard against misuse, and the statutory waiting period, during which it is possible for objections against the registration of the LPA to be made. In particular, the MOJ wishes to understand how solicitors and other advisers interact with the various stages of the process.
Currently, the LPA documents for both health and welfare decisions and financial decisions, together with the registration pages, consist of a form exceeding twenty pages. The donor making the document must sign it in the presence of a witness and have a certificate provider verify that they have the requisite mental capacity to make the document. The signature of each of the attorneys is also required to be witnessed. The document must then be registered before it can be used by the attorneys, and a statutory waiting period of four weeks must elapse before the OPG register it. This is the case whether or not the donor has elected anyone to be notified of the registration.
It is hoped that the MOJ and OPGs decision to seek input from practitioners will help modernise the process of making an LPA, in line with the recent changes to making and signing Wills.