4th Nov 2021

The Electronic Future of Lasting Powers of Attorney

The Government have recently published a Consultation to consider how the process for creating and registering LPAs can be modernised.

Currently, LPAs must be printed out so that they can be signed and witnessed before being submitted to the Office of the Public Guardian (OPG) by post for registration. The proposal is that the current process is replaced by a digital system, so that LPAs are created and registered online. Changes are also proposed to some aspects of the existing system, which are outlined further below.

Why do LPAs need to be modernised?

  • To streamline the process of creating and registering LPAs to make it more efficient and accessible whilst reducing delay. Currently, applications to register LPAs with the OPG are taking up to 20 weeks
  • To update the existing safeguards within LPAs which can be improved upon and dealt with in alternative ways due to advancements in technology
  • To improve efficiency and reduce costs within the OPG to ensure that LPAs remain affordable

What are the main changes to the existing regime likely to be?

Witnesses

LPAs are deeds which means that the donors’ and attorneys’ signatures must be witnessed. Currently, a witness must sign the document and provide their full name and address to verify the document. Problems are often caused by people incorrectly witnessing the document which leads to the LPAs being rejected.

The Consultation proposes to remove the requirement for someone to be physically present to witness the donor and attorneys’ signature through the use of an Advanced Electronic Signature.

Although removing the requirement for a witness would eliminate a safeguard, in practice the role of the witness is limited. It is suggested that additional precautions would be incorporated into the new system to counter any disadvantage.


Application Process for Registration

Currently, a Donor can choose to delay registration of their LPA until either they want their attorneys to be able to use the document or until it is required because the donor loses capacity.

The Consultation proposes that LPAs must be registered as soon as they are executed to ensure that any errors are identified and rectified at an early stage as opposed to mistakes being spotted later when the donor may no longer have capacity and cannot remedy them. The additional benefit of immediate registration is that if there is an objection to the registration on the basis that the donor lacked capacity, this could be investigated by the OPG more easily at the relevant time.

Although there are benefits to the requirement to register the LPAs immediately, there are also disadvantages, particularly that taking away the ability to delay registration removes an element of choice and may dissuade some people from creating LPAs as they may not want the LPA being capable of being used before they either want or need them to be. It also increases the costs of making LPAs, as the OPG charge £82 per LPA that is registered.


OPG Powers

In relation to LPAs, the OPG currently operates as an administrative body which is responsible for establishing and maintaining a register of LPAs. Although the OPG checks LPAs to ensure that they comply with legislation, it has limited ability to verify the accuracy of information it receives.

It is proposed that the OPG’s powers would be increased to enable it to register or reject LPAs based on the outcome of a set of predominantly automated checks within the new system, for example ID checks and checks on an Attorney’s background. If an LPA failed these checks, it is intended that the OPG would have the power to refuse registration.

In respect of existing LPAs made under the current system, the suggestion is that an enhanced application for registration process may be required which may require new ID checks.

Increasing the OPG’s powers and ability to verify information would act as an additional safeguard and it is to be welcomed from this perspective.

Presently objections can be made by limited people to the registration of LPAs in circumstances where for example, there are concerns that undue pressure was placed on a donor to make an LPA. The current system is confusing, and it is not clear how objections can be raised and who they should be made to.

To simplify the system, the suggestion is that anyone would be able to object to the registration of an LPA and all objections would go to the OPG for screening. The OPG would then review and investigate the concerns and decide how they should be dealt with. This would appear to be sensible and make it clearer for anyone with legitimate concerns who they should contact.


Objections - The Timing

Currently, objections to the registration of an LPA, must be raised during the 4-week statutory waiting period which forms part of the registration process. The waiting period is a safeguard to prevent the registration of LPAs in the event of a valid concern.

It is proposed that under the new system, objections can be raised from the point a person starts to create their LPA until the end of a shorter waiting period after it is submitted for registration. This would hopefully reduce delay but retain the ability for people to object.

 

Conclusion

Overall, the proposed new system will be helpful in streamlining the somewhat awkward system of creating and registering LPAs which is currently in place. There is little doubt that the existing system can be complicated and that mistakes are frequently made as a result.

Whilst a digital system has the potential to be more efficient and speed up the process of creating LPAs, it needs to retain adequate safeguards to protect the donor from abuse. It must also make provisions for people who may not be able to access the internet. It remains to be seen whether the proposed safeguards will be sufficient to protect the donor from fraud and abuse if the proposals are adopted.

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