Legal update
The Powers of Attorney Bill 2022-2023
Tom Lumsden, a partner at CooperBurnett LLP, discusses the contents and implications of the new Powers of Attorney Bill
Powers of Attorney are an important feature of the legal landscape. While many clients understand the necessity of making a Will, it is common to find that some clients put off making a power of attorney because they feel they are healthy or too young and that they do not yet require a power of attorney at that particular stage in their lives. The Office of the Public Guardian estimates 40 per cent of the adult UK population has a Will, but less than one per cent has a Lasting Power of Attorney (LPA). LPAs are legal documents that grant authority from one person (the donor) to another person or persons (the attorneys) to empower the attorneys with authority to make decisions about their property and financial affairs, health, and care. They are of huge benefit in the context of care homes where very often residents either have already lost or will ultimately lose capacity to make decisions about their own future. When surveyed, 45 per cent of people aged 45 and over knew nothing about LPA, and when told about an LPA, 61 per cent were not interested in setting one up in the future. One person in the UK develops dementia every three minutes. These are shocking statistics.
As essential as having a Will It is not just the elderly who need a power of attorney. They are as essential as having a Will. It is not uncommon to hear stories of people who are relatively young, perhaps in early middle age and otherwise fit and healthy, who then lose capacity through an accident or acute sudden illness. Every 90 seconds someone is admitted to hospital in the UK with an acquired brain injury. The loss of capacity may be temporary or permanent. In either case,
February 2023
www.thecarehomeenvironment.com
if that person’s assets are in his or her name and those assets need to be accessed either for urgent care or are needed by the family for day to day living expenses, then not having a power of attorney might make it difficult if not impossible to access those funds. It also causes problems as to what treatment the person should receive, especially if there are no near relatives. In some cases, the only option, in the absence of a Power of Attorney, might involve an application to the Court of Protection being made for an order appointing a guardian, who would then have authority to deal with the assets. The guardian can also be given authority to make decisions as to the health and welfare and treatment of the person who
There are proposals afoot to make it easier to make Powers of Attorney, including bringing the regime into the ‘digital age’
has lost capacity. These applications can be expensive and can take months to be processed by the Court of Protection. There are proposals afoot to make it easier to make Powers of Attorney, including bringing the regime into the ‘digital age’. The Powers of Attorney Bill 2022-2023 was published on 7 December 2022 and provides for the modernisation of LPAs. The Bill is being promoted by way of a private members bill, which as readers may be aware, rarely become law. However in this case, the Powers of Attorney Bill 2022-2023 has government support and is likely to be enacted. The Bill seeks to introduce a requirement to verify identity as part of the process of applying to register a Lasting Power of Attorney (LPA) and streamline how people can object to the registration of an LPA. There are provisions enabling different processes and evidence to be accepted depending on whether an LPA is made digitally, on paper or a mixture of the two. Those who wish to grant LPAs (in the context of care homes this will be the residents) will find it easier and will benefit from better protection.
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