Clitheroekid wrote:This is where the Lasting Power of Attorney offers less security than the old Enduring Power of Attorney.
There was no need to notify anyone that you had made an EPA, and it could be used immediately. However, if the donor lost their mental capacity it did have to be registered at the OPG, and it couldn't be used until registration had taken place. And importantly the registration process did require that various relatives were notified and given a chance to object.
However, an LPA has to be registered before you can use it at all, irrespective of your mental state, so 99% of people register them immediately.
The problem is that although the LPA form does give the option for people to be notified of the application for registration that's all it is - an option. And as 99% of people making an LPA are registering it at the same time as they're making it, when they are, by definition, of full mental capacity, they quite understandably don't see any need for anyone to be notified, so they reject the option.
The ease of fraud is something that's always worried me, and another aspect that often surprises lay people is that no evidence at all is required that the person making the LPA actually has mental capacity to do so. It would therefore be the easiest thing in the world to make an LPA for someone who did not have mental capacity, to get it registered, and to use it to steal the donor's assets.
And from the criminal's point of view the best aspect of LPA fraud is that the unfortunate victim is often by definition incapable of giving evidence, thereby making prosecution extremely difficult or impossible. This not only simplifies the crime but removes a lot of the risk from it.
At the risk of being accused of special pleading a relatively simple way of policing the system would be a requirement for a certificate from a solicitor that all the necessary formalities had been complied with and that the identity of the parties to the LPA had been verified. But this would obviously (a) create an additional cost; and (b) put money in lawyers' pockets, and as the Government are obsessed with `light touch regulation' and know how unpopular lawyers are this would never happen for purely political reasons.
Having said all of the above it would be far easier just to use an ordinary Power of Attorney - a section 10 PoA as they're known in the trade. This is a simple one page form that is signed by the donor in front of a random witness, and gives the attorney immediate and unrestricted powers to deal with all the donor's property with absolutely no overview at all and no pesky notification / registration formalities to worry about.
I suspect the only reason these aren't used to perpetrate widespread fraud is that crims simply don't know about them - so I sincerely hope the LF readership doesn't include any potential fraudsters!
Would a way to defeat this be to set up either type of power of attorney immediately, that is ahead of any possible fraud attempt? If a genuine document is already registered, would that defeat/deter any later fraud?
Arb.