Legal update
In 2021/22 the Office of the Public Guardian (OPG) received over 975,000 applications for LPA registration. Over six million LPAs are on the register and the briefing notes to the Bill suggest that this figure will only continue to rise with an ever aging population.
Problems and solutions
Problems with the current system are that the current protections are losing effectiveness as technology improves and society’s attitudes change. All LPAs must currently be made on paper. This has been found to be cumbersome, especially in the context of trying to process LPAs during the Covid-19 lockdowns. It is also inefficient for the OPG to handle large amounts of paper. Under the new proposals, individuals will be allowed to make and register LPAs using a ‘digital channel’. This is fairly revolutionary in terms of current processes for LPAs. The Bill will provide that only the donor can apply to register the LPA and will set out regulations that describe the verification requirements that must be met for an application to register an LPA to be accepted. The Bill will also require the OPG to tell the parties when an application to register an LPA is complete and when the registration process is starting. There will still be an avenue for those wishing to object to registration of an LPA to put forward their reasons for such an objection. The category of people who will be permitted to lodge an objection will be expanded, so that third parties who are not named in the LPA can also raise an objection. There will be new forms provided for evidence of the LPA to be created and accepted, and for the proposed electronic form of the LPA to be registered as evidence of the LPA. There has also long been an anomaly in the current law under the Powers of Attorney Act where chartered legal executives are not permitted to certify copies of Powers of Attorney. The current law stipulates that copies of Powers of Attorney can only be signed by the donor of the Power, a solicitor, or a person authorised to carry on notarial activities or a stockbroker. By allowing legal executives to certify
an LPA, this may make it quicker to obtain certified copies. This is because the process of certification is quite time consuming when there are bulk LPAs to be certified, since the person who certifies the LPA must certify not just the first page but every single page of the attorney and must inspect the original against the certified copy. LPAs are
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There does seem to be a broad consensus that the Bill should be enacted
typically long documents. The OPG believes that LPAs are taking on
average 20 weeks to process as against its target of eight weeks. This delay is causing significant angst for loved ones according to the OPG because of the backlog in the system. Where a person has lost capacity, the delay in registration can cause not only emotional stress but also financial hardship, since there will be some assets and funds that cannot be accessed by the relatives of the person who has lost capacity until such time as the LPA has been properly registered.
In the case of residents who require accommodation in care homes, some care homes may refuse to allow access if the proposed resident has lost capacity and the LPA has not been registered, unless one or more relatives provide personal guarantees to meet the payment of fees. There will be cases where the next of kin do not have the financial ability to give such a personal guarantee, and where, for example, the only asset available to pay for the care home fees is the resident’s home.
Closing thoughts As with all proposed changes in the law, perhaps the two most important questions are (1) when is the Bill likely to be enacted, and (2) what provisions will be contained in the detailed regulations? In answer to the first question: this is not entirely clear. The Bill had its second reading in the House of Commons on 9 December 2022 and therefore still needs to go through
Tom Lumsden
Tom Lumsden is a partner at CooperBurnett LLP in Tunbridge Wells, specialising in commercial property. He has particular expertise in the sale and purchase of care homes, including acquiring land for care home developments.
the remaining stages before it receives Royal Assent. As mentioned above, there does seem to be a broad consensus that the Bill should be enacted. In answer to the second question: the regulations will need to balance the need to have secure processes for digital applications, with the need not to make those processes so laborious and difficult that any efficiencies of digitalisation are lost. Overall, the Bill should result in
welcome changes by modernising the process and introducing an option for digitalisation of LPAs – thereby reducing the current delays.
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Disclaimer The above article is not intended as legal advice and must not be relied upon as such.
www.thecarehomeenvironment.com February 2023
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