The Power of Attorney Bill – a step in the right direction?

Lasting Powers of Attorneys (LPA’s) clearly have a place in an ageing population. An LPA allows a person (a donor) to appoint another (or more than one person) to make decisions on their behalf when they become unable to do so themselves. There are currently two forms of LPA, one for Property and Finance and another for Health and Welfare. The current application process requires the donor and those attorneys nominated to complete a hard copy form which is then sent to the Office of Public Guardian to be processed. The LPA can be registered immediately or at a later date. According to recent statistics the current application process can take the Office of Public Guardian up to 20 weeks to process. An attorney has no decision-making ability unless and until the LPA is registered.

With the aim of addressing the evident issues in the current process, the government has recently backed the Lasting Power of Attorney Bill. The Bill is intended to provide extra protection to donors and allows applications to be made completely online or via a streamlined paper process to prevent delay. With a view to minimising the risk of a donor being exploited via the use of an LPA, the Bill proposes that only donors can register an LPA in contrast to the current process which allows a donor or an attorney to register an LPA.  

Whilst the intention to protect donors and their assets is clear, in practise allowing only a donor to register an LPA may have not have the intended effect. For example, if a donor delays registration or becomes unwell or loses capacity before registration their intended attorney/s will have no standing to make decisions on their behalf and the unregistered LPA is effectively null and void.  The proposal for the Office of Public Guardian to notify parties of the registration of an LPA is in contrast to the current process whereby it is optional for a donor to notify parties.

The Bill has moved to the next stage and time will tell if all the proposed changes are approved and implemented. It is evident the current process is lacking and there is at least an intention to improve the process and ultimately the protection of those who need it most.  However, there clearly needs to be further thought to protecting the donor with an unregistered LPA who has a quick or unexpected loss of capacity as with the current proposals, their wishes for who should act as attorney in those circumstances could not be implemented.