20.04.16

By Philip Warford

Recent research has highlighted that only “[1]around 15% of people aged 75 or over have LPAs in place”. Considering that having LPAs in place can be as important as having a Will, these statistics are particularly shocking.

In light of this research you may or may not know that new forms were introduced in July 2015 in order to try and simplify the process for a person putting in place LPAs. The Office of the Public Guardian (OPG) is hoping that the simplification of the process should make it easier for members of the public to put in place LPAs, without the need to engage a legal professional. BUT is this the right approach for everyone?

Our view

In our view, this approach may be right for some people and it may encourage more people to put in place LPAs, however this houldn’t be seen as a ‘one size fits all’ scenario and other factors need to be taken into account. When considering LPAs for your client you need to question whether the client is ‘vulnerable’ in any way and if their needs require special attention. A vulnerable person may not just be a person who is recognised as vulnerable or disabled, such as an elderly person or a person with additional needs. It could be that the person’s family situation puts them in a ‘vulnerable’ position. For example, an individual may be highly influenced by a particular family member or be in a difficult position due to strained relationships between close family members. To put in place straightforward LPAs without legal guidance could result in them being pressured to appoint the wrong attorneys or be open to exploitation.

Clients may not realise that they can vary the combination of attorneys that they appoint and that they can place restrictions on how and when their attorneys are appointed and on the decisions the attorneys can make on their behalf.  By considering all of the options, it is possible to make the LPAs work effectively for the client.

Particular examples

LPAs may not be ‘simple’ when a client has a family from a previous marriage as they may need to carefully consider the appointment of family members who may have different views and opinions. Also, if your client has an illness or long term medical issues, the Health & Welfare LPA can be set up to take account of their wishes for future treatment and decisions to be made that is specific to their illness.  It is extremely important to ensure that there is no conflict between LPAs and other legal documents such as an Advance Decision or a Do Not Resuscitate Order.

If a client wants the attorneys to be able to delegate investment management decisions to a discretionary managed service then this would need to be specified in the Property & Financial Affairs LPA.  A client completing the form themselves may not realise this and their attorneys would not be able to act in this way without specific authority in the LPA.

The personal circumstances of the individual who is creating the LPAs need to be taken into account and it’s vital that the arrangements which are put in place meet their needs and are workable solutions. The simplification of the LPA forms may mean that specific circumstances which need consideration within the LPAs process are not included and only a person with legal and practical knowledge would know to raise these.

“But, you would say all this” I can hear you cry, “you’re a lawyer”. My main concern is not losing work, it is that there is an increased chance of mistakes being made, clients not having the right arrangements in place to meet their needs and those clients that are vulnerable being open to exploitation. This all results in lawyers having to be drafted in to try and rectify oversights and inaccuracies, often when it’s too late.

When discussing LPAs with your clients, it is vital to consider their situation in detail and identify whether they may benefit from legal advice based on their personal circumstances.

[1] Reference: The Magazine of the Private Client Section – Mental Capacity: LPA Simplification January 2016