Modernisation of Lasting Powers of Attorney – What does the future hold?

5 August 2021

The Office of the Public Guardian (OPG) and the Ministry of Justice are working together to modernise the process of making and registering Lasting Powers of Attorney (LPAs). The consultation is open to the public and will remain open until 13 October 2021. 
 

LPAs are important estate planning tools, especially to protect in instances when an individual loses capacity. We have previously blogged about LPAs here.We have seen a rise in popularity as individuals are increasingly realising the necessity of LPAs to support friends and family in the unfortunate event of a loss of capacity. The Covid-19 pandemic has also had an effect on the steady increase in LPAs.

However, making and registering LPAs are notoriously more difficult than anticipated. The need to ensure the donor, attorney and certificate provider all sign their respective pages in the correct way, with a suitable witness and in the correct order mean LPAs are often plagued with problems and signed incorrectly. This often results in a rejection from the OPG, which is not always communicated quickly. Recently, there have also been delays in the registration of LPAs and there is currently no way to expedite an LPA when it is urgent. Even once an LPA has been made, having it registered with the various financial institutions is often just as time consuming and onerous.

The current paper based system is both cumbersome and slow and third parties on the receiving end of LPAs often simply do not know what they are or how to deal with them. There is no doubt that modernisation is needed and welcomed.

In recent months, we have seen digital services being utilised to simply the way certain documents are executed. Emergency legislation was introduced to allow for wills to be validly witnessed remotely to overcome social distancing restrictions and electronic signatures are now acceptable for certain probate and land registry forms.

The question is what will happen with LPAs?

The overarching objectives of the modernisation project are to:

  • Increase safeguards, especially for the donor.
  • Improve the process of making and registering an LPA for donors, attorneys and third parties.
  • Achieve sustainability for the OPG while keeping LPAs as affordable as possible for all people in society.

The consultation also intends to review the following aspects of the existing regime:

  • How witnessing works and whether remote witnessing or other safeguards are desirable.
  • How to reduce the chance of an LPA being rejected due to avoidable errors.
  • Whether the OPG’s remit should be expanded to have the legal authority to carry out further checks such as identification verification.
  • How people can object to an LPA and the process itself, as well as when is the right time for an objection to be made.
  • Whether a new urgent service is needed to ensure those who need an LPA granted quickly can get one.
  • How solicitors access the service and the best way to facilitate this.

The current proposals would see the entire LPA service become predominantly digital.

Modernising the LPA process offers the opportunity for a more simplified and user friendly process, which is likely to encourage more individuals to see the merits of making an LPA. Whilst a move to digital is welcome, this needs to be balanced with the risks of abuse (both power and fraud), especially for those older or more vulnerable individuals. The new process must have safeguarding measures to ensure the protection of individuals. The move towards digitalisation also needs to ensure that there alternatives for those who are unable to use the internet.

The need to make a LPA is commonly associated with the older generation. However, loss of capacity could happen at any time due to accidents or illness so LPAs really should be considered by all ages. The main benefit of the proposals is to make LPAs more accessible to individuals. Any change which results in promoting the importance of LPAs, simplifying the ability to make an LPA and safeguarding those who are vulnerable is welcome.

Further information

If you have any concerns about capacity, or if you are contemplating making a LPA for the first time, please get in touch with our team or Diva Shah.

 

About the author

Diva Shah is an Associate in the Private Client team. Diva acts for various clients including high net worth individuals, entrepreneurs, executors, trustees and individuals who lack mental capacity on a broad range of matters.

 

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