First published by WealthBriefing on 16 August 2021 - August Big Read: LPAs, Capacity And Silver Splitters – The Practitioner’s Perspective
Written by Peter Burgess and Leora Taratula-Lyons
In July the UK government announced proposals to make the system of lasting powers of attorney more up to date by encouraging a more digital approach, for example. We have already carried a commentary on the topic here. In this article, a practitioner working in the space examines the terrain. The authors are Leora Taratula Lyons and Peter Burgess, Burgess Mee Family Law. The editors of this news service are pleased to share these insights and invite responses. Email the editors at firstname.lastname@example.org and email@example.com. The usual editorial disclaimers apply to the views of guest contributors.
Last month, the Ministry of Justice announced a consultation on making Lasting Powers of Attorney or LPAs “safer, simpler and fit for the future.” The focus is on improving the process of making and registering LPAs, potentially by using developments in technology and balancing this by ensuring that sufficient safeguards are in place to protect the donor (the person making the LPA) from fraud.
Although LPAs were introduced almost 15 years ago, the archaic and laborious process of signing and registering these important forms retained many of the hallmarks of its predecessor, the Enduring Power of Attorney or “EPA,” which was established back in 1985. As the consultation’s foreword describes, the LPA is “[i]n its essence, […] 36 years old.” Despite the initial form filling part of the procedure being digitised, the stages that follow require printing and signing the hard copy pages in the correct order by the correct party in wet ink. This is proving increasingly difficult due to a growing number of international families with social distancing measures preventing parties from gathering together to sign documents, resulting in sending the forms from person to person in turn - an unnecessarily time-consuming and convoluted process.
The growth in LPAs being registered
Statistics since 2008 show an exponential rise in the number of applications for LPAs being registered with the Office of the Public Guardian. The graph (1) depicts a huge upward trend from roughly 10,000 in 2008 to a peak of 240,000 in Q2 of 2020. COVID-19 caused a significant drop in Q3 of 2020 (down to approx. 125,000) before the figures rebounded and now sit at around 200,000 per quarter. The Ministry of Justice attributes the very sharp rise in 2015 and 2016 to increased publicity about the new online forms introduced at the time, making it simpler and faster to apply.
The impact on family law
Why is this significant? It’s down to the increasingly common phenomenon of “silver splitters” i.e. those who divorce and separate later in life.
As a solicitor advising a new client facing a pending separation or divorce, we would usually float the idea of a change to their will, or making an LPA, as well as considering “severing” the title to any jointly-held property so that it passes in accordance with their will, rather than to the surviving joint tenant. Clients may prefer not to take up this option as naturally it works the other way i.e. if they sever the tenancy and the other party dies, they will not automatically inherit as a joint tenant. However, as clients are getting divorced and separating later in life, issues around inheritance and capacity will increasingly feature in future.
In our 16+ years of private practice, issues of capacity have become far more prevalent with overlapping applications in the Court of Protection, and more frequent recourse to mental health assessments. As public awareness of mental health issues has grown, assessments have become more common in family law, encompassing children work and increasingly financial remedy work, in the context of decision-making capacity.
Practice Direction 15B of the Family Procedure Rules deals with what the court will do when an adult may be a protected party. It is the responsibility of the solicitor acting for the client in the first instance to assess capacity and it is one of the few areas of the Family Procedural Rules where a solely-appointed expert is recommended. Under the Mental Capacity Act 2005, capacity is presumed, and this applies here as well. It is also important for the practitioner dealing with the matter to consider what level of understanding the party needs to have capacity to make decisions. The capacity to get divorced, for example, may be different from the capacity to litigate a financial remedy case. The practitioner may also need to consider their client’s ability to give evidence as a witness.
In these cases it may be necessary to appoint a Litigation Friend to stand in the shoes of the protected party and make decisions on their behalf. This could be another family member, or a professional Litigation Friend. It is possible in this situation to involve the Official Solicitor, but usually only as a last resort.
The views of family members are significant and the extent to which they may align with those of the protected party. Depending on their level of awareness, a proof of evidence may be taken from the protected party or their views elicited in order for the Litigation Friend to make an informed decision on that party’s behalf.
One case on which we were instructed involved parties in their 90s getting divorced. The children of these parties were divided on either side by gender. The husband was alleging that both the LPA and divorce petition were made at a time when his wife lacked capacity to do so and further that the wife had been subject to undue influence by one or more of the children. There were concurrent Court of Protection and Family Division proceedings being overseen by a High Court judge (who could sit across both cases). A number of experts were appointed to give evidence about the lay client’s ability to make decisions at that time.
In such situations, the views of the adult children and their competing interests are likely to play a part in resolving any dispute. It may be an idea to consider a civil-style mediation with all parties represented including any interested family members. In this case it was possible to resolve the issues, including questions of inheritance, without the need for a contested hearing although, had it been heard, it would undoubtedly have been a reported decision on the capacity required to get divorced and of general application to family law practitioners. Practitioners should also be mindful of the risk of both undue influence and fraud, which will be a focus of the potential future reforms to the LPA process.
As medical science and our understanding of physical and mental impairment advances, so the family law scenarios in which such assessments may be relevant, increase.
For clients in the later stages of life, it may be sensible to look at preparing LPAs and a new will with the backing of a capacity report from a specialist neuropsychiatrist or GP at the time those documents are executed in order to insulate them from a later challenge by another family member (also known as adhering to the “Golden Rule” in respect of the execution of wills).
If a diagnosis of a degenerative illness is made which might affect mental capacity, it is sensible to get some guidance from a treating clinician about the effect of any impairment in order to advise the client about when to enter into a new will or LPA. Broad questions about the status of their marriage and the arrangements in place on the ground should be asked so that an assessment can be made as to whether, for example, a postnuptial agreement should be entered into. Like a prenup, this contract, whilst not automatically binding, would be an effective means of asset protection in the event of the death of the patient/spouse/cohabitant and would avoid a disputed inheritance claim which might follow.
We fully expect there to be more cases involving crossover between the Family Court and Court of Protection and it is important for all advisors (whether lawyer, accountant, financial planner, investment manager or trustee) to recognise the likely interplay. For family lawyers in particular this means understanding LPAs and capacity, and for private client lawyers, this means understanding how a will or LPA might be challenged and its impact on separations later in life.