The Public Guardian’s review of the Mental Capacity Act and consultation on Lasting Power of Attorney forms

The Public Guardian has launched a consultation to review the Mental Capacity Act 2005: forms, supervision and fees, proposing changes to three areas of the work of the Office of the Public Guardian and Court of Protection:-

1. Redesign of the Lasting Power of Attorney forms;

2. Restructure of the Supervision of Deputies by the Public Guardian;

3. Alterations to the fee structure – proposing to reduce the fee for registering a Lasting Power of Attorney from £150 to £120, bringing it in line with the registration fee for an Enduring Power of Attorney.

The current Lasting Power of Attorney forms contain a number of safeguards against misuse. The Lasting Power of Attorney must be in a prescribed form. Any LPA not in the prescribed form has to be rejected by the Public Guardian.

There have been complaints that the forms are too lengthy, too complicated and that it is easy to overlook important parts of the form. In some places the current LPA forms have requirements that are more than the legislation requires and are too burdensome.

A Lasting Power of Attorney can be registered either by the person drawing up the LPA or by the attorney. Before making the application for registration, notice of the intention to register must be sent to up to five people named by the person drawing up the Lasting Power of Attorney. There is then a period of five weeks when objections to the registration can be made. All Lasting Power of Attorneys contain a statement by an independent person that the person drawing up the LPA is competent and has capacity to do so and was not subject to fraud or pressure. However, most Lasting Powers of Attorney only name two people so the re-design of the form is likely to only include space for two.

The Public Guardian has had to reject Lasting Power of Attorney forms that were not completed correctly or delay registration whilst corrections were made.

The consultation will run until 15 January 2009. Responses to this consultation are expected to take effect from April 2009. The consultation is part of a wider investigation into the implementation of the Mental Capacity Act 2005.

If you would like advice on the registration of a Lasting Power or Attorney or an Enduring Power of Attorney, please call 01858 445493 to make an appointment. Appointments can be made at any of our branches in Market Harborough, Wigston or on Uppingham Road, Leicester.