On 15 December, we held our third workshop with the MLPA working group. The workshop focused on two areas: speed of service and the role of application.

We had representatives from Alzheimer’s Society, Age Cymru, Law Society, Solicitors for the Elderly, STEP, UK Finance, the Building Societies Association, the National Mental Capacity Forum and the Race Equality Foundation.

Speed of service

Problem statement: Registration of an LPA takes time, including the statutory waiting period. When someone loses capacity before their LPA is registered, there is a period where their chosen attorney cannot yet act on their behalf.

Opportunity statement: How do we meet the need for an urgent LPA without compromising personal consideration and system safeguards?

The group discussed both shortening the statutory waiting period and removing it completely. Those in favour of shortening or removing tended to be from the legal community. Some attendees from the third sector were more wary, and felt safeguards shouldn’t be removed to increase efficiency.

MOJ/OPG raised the possible option of offering a faster LPA registration process. The group also discussed an idea, suggested by participants at a previous workshop, for a temporary ‘limited LPA’ for those donors shown to be in urgent need, although some concern was raised about this adding further confusion for use of an LPA with 3rd parties.

While attendees were interested in these suggestions, those from the legal and financial sectors were concerned about what would happen when the attorney went to a bank or other organisation to try and use the limited LPA. Would staff and attorneys understand and keep to the restricted scope of a limited LPA?

The group heard how bank staff are increasingly under pressure to assess the vulnerability and capacity of customers, even though the Financial Conduct Authority does not require them to do so. There is a growing expectation on firms to identify vulnerability and protect customers from unwise decisions.

One attendee raised the concern that if a faster, urgent service was created, most people might try to use that option. There was also concern that if people know an urgent service is available, they might delay making their LPA, with the risk they leave it too late and lose capacity before they can make an LPA.

The practicalities of gathering medical evidence to prove urgent need were also discussed. It was pointed out that already some GPs and doctors don’t want to act as certificate provider - it may be difficult to get them to provide evidence to support urgent LPA applications. This may well end up making any urgent service more complex and time-consuming.

Attendees were positive about the possibility of using technology to identify errors in LPAs as they’re being made.

As in previous workshops, attendees suggested that checks should be done on attorneys to ensure there is no history of fraud. CRB checks were mentioned in particular.

Role of application

Problem statement: Users can create an LPA, but delay sending it for registration. If that LPA is sent by the attorney after the donor has lost capacity and is found to contain errors, a new LPA cannot be made.

Opportunity statement: How can we reduce and limit the number of administrative errors made in an LPA before it is sent for registration?

The common view from attendees was that the donor should be supported and encouraged to register their LPA without delay. Solicitors said they educate donors about the potential consequences of delaying registration, and felt OPG’s guidance should do the same.

One attendee questioned why OPG would want to store executed, but unregistered LPAs, as this is something solicitors can already do for donors. Another asked if OPG would check an LPA for errors before storing it.

There was some concern that some donors and attorneys might mistakenly think a stored, unregistered LPA could be used.

When considering OPG storing unregistered LPAs, an attendee suggested that donors should be sent a message each year asking them to confirm the LPA still reflects their wishes. It was also suggested this might be good practice for registered LPAs.

Some participants talked about an LPA ‘transferring power’ to the attorney. This has been raised before as a possible reason why people delay registration. MOJ clarified that there is no transfer of power on an LPA’s registration - the donor confers power on the attorney. The donor remains in control as long as they have capacity and should be at the centre of decision making even if they do lose capacity.

The group felt that more should be done to educate donors and attorneys about when and how the LPA can be used.

There was some support for the idea that executing an LPA automatically registers it. However, it was noted that this should not come at the expense of appropriate checks.

Our next workshop

We’ll be running a series of workshops in early 2021. These will be an opportunity to explore the key themes discussed so far in more detail.

The first workshop will be held on Wednesday 20 January from 10am to 12 noon and will focus on identity and OPG’s remit.