18 August 2008
The Mental Capacity Act 2005 (MCA) came into force during 2007. It provides a rigorous environment within which the affairs of those who become mentally incapacitated are managed. The act aims, among other things, to help such people retain as much autonomy as possible while minimising opportunities for their exploitation. It has introduced a statutory framework for assessing mental capacity, replaced enduring powers of attorney (EPA) with lasting powers of attorney (LPA), and created a new Court of Protection and Office of the Public Guardian (OPG).
Since the act came into effect, however, both practitioners and their clients have been faced with a myriad of problems.
The complexity of the forms, delays in registration, and the apparent lack of understanding of the new rules at the OPG itself have resulted in a shaky start.
There are two forms of LPA. One deals with a person’s property and affairs (just like the old EPA); the other covers their personal welfare. In both cases the LPA enables an adult (the ‘donor’) to appoint one or more people (the ‘attorney’) to act on their behalf. The appointment remains effective even if the donor loses mental capacity.
One of the new safeguards in making an LPA is statutory certification. A ‘certificate provider’ must discuss the LPA with the donor in private and confirm that they understand its scope and purpose, that no undue pressure or fraud is involved and that there is nothing to prevent the LPA being created. The certificate provider may either be ‘knowledge-based’ (ie have known the donor for at least two years) or ‘skills-based’ (eg a doctor or solicitor). There are restrictions on who can be a certificate provider – they must not be a member of the donor’s family, for instance.
Since the MCA came into force, both practitioners and their clients have experienced difficulties in completing LPAs and registering them. Problems have included the following:
• The need for a certificate means that the formal requirements for completing an LPA are considerably more onerous than for the old EPA – more so, even, than those required for executing a will validly. It is easy for an experienced practitioner to make an error – for the layman completing the form themself, the pitfalls are all too numerous.
• An LPA must be registered with the OPG before it can be used. This contrasts with an EPA, which, unless a restriction to the contrary was included, operated as an ordinary power of attorney until the donor lost mental capacity, at which point it had to be registered. During the period between the donor losing capacity and registration, the attorney continued to have limited but important powers (for example, they could pay bills). As LPAs cannot be used until registered, practical problems can arise in this intervening period, leaving a donor’s affairs in limbo. Although an LPA can be registered before the donor loses capacity, many donors do not wish to do this because the LPA can then be used.
• Registrations of LPAs have been refused on minor grounds, such as the certificate provider failing to tick the box on the form confirming that they are over 18. The OPG should be able to contact the certificate provider to check such details, rather than simply refusing registration.
• Forms have reportedly also been rejected by the OPG because boxes were ticked rather than crossed (as stated in the guidance notes). Since the effect is immaterial it seems pedantic in the extreme that registration should be refused on that ground alone.
• There are lengthy delays in processing registrations. The OPG’s service standards aim to register an LPA within five working days from the expiry of the six-week period during which objections may be made, but this is not being achieved. Currently, the OPG aims to register applications received after 14 July 2008 within eight weeks, and those received before then within 12 weeks. Errors in a form mean registration takes substantially longer. There are reports of donors dying before registration has been completed.
• OPG staff seem to be struggling with the new rules. They are also now unable to give advice to practitioners, who must rely on the forms and practice directions. Even routine enquiries go unanswered.
The MCA has an admirable purpose – to minimise the abuse of vulnerable people by unscrupulous attorneys. However, the new forms, practice notes and guidance are complicated and lengthy. What was once a relatively straightforward procedure for solicitors when making an EPA for a client is now a time-consuming and often costly task. In fairness to the OPG, it does recognise that difficulties exist. It is to be hoped that Martin John, the new public guardian, will place them high on his list of priorities, so that the aims of the MCA can be fully realised.
Fiona Smith is a private client partner at Forsters