The Law Society have recently commented on their efforts to influence the shape and detail of legislation concerning Lasting Powers of Attorney (LPA) and the Mental Health Act for the past 2 years.
It is highly important that this legislation protects and supports individuals detained under the Mental Health Act and reduces the risk of exploitation during the LPA process.
The LPA was introduced in 2007 to replace the previous Enduring Power of Attorney, to provide more flexibility and protections to the individuals who decide to create an LPA and delegate their powers to an Attorney.
LPAs are a document that holds extreme importance as they delegate wide ranging powers to the nominated individual – the Attorney. The Attorney is legally empowered to make decisions such as finances and living arrangements.
The Ministry of Justice suggested changes in 2021 such as improving the speed and accuracy of creating LPAs via a digitalised service. A large number of individuals who need to make an LPA via a paper process, such as individuals living in care homes or people with learning difficulties, would require a user friendly digital service with better support options for individuals who are not experienced with technology.
The Law Society have commented ‘We responded to this consultation, agreeing with the overarching aims, but we highlighted concerns that proposals failed to address how the new system would work for those who cannot access a digital service.’
The Government published its response in May 2022, confirming their proposed next steps and stating that they wished to improve the witnessing process of LPA’s, introduce identification checks, create a clearer process for objecting to the registration of an LPA and a digital channel and automation will be introduced to assist with accessing the service.
In December 2022, The Powers of Attorney Bill was introduced and the Law Society commented: ‘We broadly support the bill’s aim of improving the process of registering an LPA. However, we recommend the bill amends the Mental Capacity Act to make clear the certificate provider has a responsibility to confirm that the donor has the mental capacity to make an LPA. Without this change, vulnerable people are at greater risk of being exploited.’
Back in June 2022, the government published the Draft Mental Health Bill, following an independent review into the Mental Health Act 1983.
The draft Mental Health Bill has set out proposals giving patients more say over their care and better options for patients to appeal against being detained in hospital.
The Bill follows recommendations from the independent review calling for patients to be treated as individuals and that their views and choices are respected and central to decisions about their care.
It will be interesting to note whether the Bill will be implemented with all of the recommendations from the independent review and what further developments and proposals are put forward by the Government to better protect the most vulnerable.
If you need help with making an LPA, please get in touch with our Court of Protection team on 0344 326 0049 to discuss how we might be able to help.