The Government consultation on Lasting Powers of Attorney
12 October 2021
There is currently a Government consultation in progress surrounding Lasting Powers of Attorney (LPA). LPAs were introduced in 2007 by the Mental Capacity Act, and replaced the old-style Enduring Power of Attorney.
They were designed to provide more flexibility and greater protection to the person entering into the power. For an LPA to be valid, it must be signed as a deed, meaning that the donor must sign the LPA in front of an independent witness. The document must also be signed by a ‘certificate provider’ to confirm that the donor has understood the contents of the LPA, and that there is no undue pressure on the donor, and no fraud being committed. The document also has to be signed by each attorney named in the LPA.
With the wonders of modern technology, and in particular with the COVID-19 pandemic, there is growing pressure to consider new digital channels to modernise LPAs.
It is argued that in the 14 years since LPAs were introduced, technology has advanced and become more widely used and accessible, and as such the next step being considered is to introduce a fully-automated service for completing and registering LPAs, in what would be a cost saving exercise. It is also said that it would increase efficiency in registering the documents compared to the current system.
However, concerns have been raised as to the safeguarding provisions, and to ensure that the most vulnerable are still protected in an adequate way. Any updated system will need to protect donors from possible abuse. There also needs to be easy access for those who cannot or do not want to use the digital service.
In 2019, the Law Commission published its paper ‘Electronic Execution of Documents’. The report specifically highlighted that: “In the case of lasting powers of attorney, it is clear that the Office of the Public Guardian (OPG) … should consider what is sufficiently secure and reliable for donors before introducing any system using electronic signatures.”
To achieve this, several proposals have been put forward in the consultation, which include how technology can be used to support remote witnessing, or whether the need for a witness should be removed altogether, to widen the OPG’s powers so they can verify an individual’s ID, to consider how people can object to LPAs being registered, and how long they have to raise an objection.
Consideration is also being given as to whether a dedicated faster service should be introduced for those who need LPAs registered urgently.
To implement the changes being considered, the provisions of the Mental Capacity Act 2005 and supporting secondary legislation will need to be amended, and this is also being considered as part of the consultation process.
The consultation runs for 12 weeks until 13 October 2021. Full details of the consultation can be found on gov.uk by searching ‘Modernising Lasting Powers of Attorney’.
This article is from the autumn 2021 issue of Private Lives, our newsletter covering the key legal and tax issues that individuals face. To download the latest issue, please visit the newsletter section of our website.
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at October 2021.