LASTING POWERS OF ATTORNEY: Time for a change?

Few of us really think about what will happen if we are unable to decide matters such as, where we live, or what medical treatment we would want to receive or not receive? Most of us take for granted that we will be able to continue to handle our own financial affairs.

However, although we are living longer, this often comes at the expense of our health and for some of us this will mean that we will be unable to make such decisions for ourselves. The Mental Capacity Act 2005 (MCA 2005) gives most of us the opportunity to appoint a person or persons that we trust to make decisions on our behalf, in the event we are unable to take those decisions for ourselves, whether through disease, illness or an accident.

About Lasting Powers of Attorney

Lasting Powers of Attorney (LPAs) were introduced in 2007 and replaced its predecessor the Enduring Power of Attorney (although existing Enduring Powers of Attorney remain valid). The changes brought about by the MCA 2005 were intended to introduce greater flexibility and protections. Whilst this was arguably achieved, the protections that exist within the current LPA system are based on traditional principles such as signing and witnessing.

The number of LPAs has increased significantly since its inception. For instance, the Ministry of Justice notes that in the year 2014/15, just over 390,000 LPAs were sent to the Office of the Public Guardian (OPG) for registration. By 2019/20 this more than doubled to just under 920,000 (see, “Modernising Lasting Powers of Attorney July 2021 consultation paper”). There are already several ways to complete an LPA (paper/PDF/OPG’s online tool) however, they must all at some stage be printed, signed, and witnessed on paper, before submitting them to the OPG for registration. There are strict requirements setting out how the LPA must be signed, which often causes lengthy delays and, in some instances, can result in them being rejected by the OPG.

With new technology people expect to be able to access services such as this online. This has been exacerbated further by the Covid-19 pandemic which saw most of us largely confined to our homes. This made the execution of LPAs somewhat difficult, if not, impossible to achieve given the cumbersome and complex execution process involved. Furthermore, the Ministry of Justice reports that in 2019/20 the OPG received 19 million sheets of paper in the form of hard copy LPAs and posted out a similar number. Finally, there are strong arguments that the system must be improved to keep up with society’s attitudes to fraud and abuse, and the associated expectation that we will be protected against them.

Proposed changes to modernise the LPA

It is for this reason that the Ministry of Justice and OPG are working to modernise LPAs and have identified the following aims:

1. Increase safeguards, especially for the Donor (the person putting the LPA in place)
2. Improve the process of making and registering an LPA for donors, attorneys and third parties thorough the use of technology
3. Achieve sustainability for the OPG whilst keeping LPAs as affordable as possible for all people in society

To achieve the above, there are proposals looking at the following:

1. The role and value of witnessing on LPAs and how to keep that value. They will examine how witnessing can be achieved using technology to support witnessing or remove the witness.
2. Methods of having LPAs digitally checked as they are being made to avoid them being rejected by the OPG.
3. Expanding the OPGs remit to allow it to verify people’s identity and to stop or delay the registration of an LPA if it has concerns.
4. Re-consider how and when people can object to an LPA.
5. Considering the speed of the LPA service and whether a dedicated faster service should be introduced for people who need an LPA urgently.
6. Whether it is possible to integrate the service with solicitors’ case management systems or how solicitors can access the service otherwise.

Although the above proposals appear simple, we know they are not. A balance needs to be struck between ease of creation of the LPAs and protection against fraud, abuse, and coercion. There are many people who do not use IT and further thought will need to be given on how they will not be at a disadvantage. Simplifying the process carries greater risk, including making mistakes in your application, abuse of power and fraud. Whilst we recognise that the new digital world offers excellent improvements to many aspects of the legal system, such platforms could mean vulnerable people being targeted for fraud, coercion, or abuse. We are aware that Stakeholder organisations such as STEP and Solicitors for the Elderly are involved in the current consultation process and will be raising these concerns with the Ministry of Justice and hope that as a result, the correct balance is found.

Contact our Wills, Trusts & Probate specialists

IBB will keep a close eye the developments within this area, however If you have any questions regarding LPAs, please contact IBB’s Wills, Trusts and Probate team on 01895 207 910 or email wills@ibblaw.co.uk.