28 July 2021

Lasting Powers of Attorney – for the digital age

By Miranda Marshall, Director, Hayes + Storr.

Last week the Ministry of Justice (MoJ), in collaboration with the Office of the Public Guardian (OPG), published a consultation on plans for how Lasting Powers of Attorney (LPAs) can be modernised. The OPG is the administrative arm of the Court of Protection, which oversees the affairs of those who cannot do so for themselves, intervening when necessary.

This modernising LPA project aims to improve the process of making and registering an LPA by, increasing safeguards, improving access, and ensuring that the OPG is working sustainably while keeping LPAs as affordable as possible.

The development of digital channels has transformed the way people think and act and the OPG appreciates that they need to adapt their processes to ensure they meet the needs of the public.

Having, one must presume, taken public-relations advice, the OPG say: “Our ambition is to use technology to improve our LPA services, without compromising safety or limiting access for people who aren’t online, and the launch of our consultation marks an important next step in making LPAs safer, simpler and fit for the future.”

The OPG say that they are keen to hear views. Well, since you asked! It is all a question of not “throwing the baby out with the bath water”. Keeping the good and changing the less good; rather than, as is so often the way, vice versa.

Such a development will, I am sure, be warmly welcomed by all who have grappled in the past with any part of the process of getting an LPA up-and-running. That is what the LPA is there for, after all. This is especially so with what one might call ‘activation’, i.e., getting the LPA in place, so that the attorney can take over and run things.

Very serious misgivings have already been expressed on professional fora about the acceptance of digital modernisation by all official and commercial organisations. All professionals and their teams working in this field can cite a litany of banks and financial outfits who have refused to engage with the OPG’s track-an-application service and to insist on paper all the time. The users of the banks etc, whether lay or professional, have no choice, we just have to engage with them, and just have to follow the banks’ etc. unwieldy systems. These systems, which vary considerably both in their working-methods but also competence, have never been that good. The pandemic has seen them grind to a juddering halt during the complications of lockdown and the remote working of their staff.

The handling of the overall LPA-activation process by many outfits is poor, sometimes verging on the incompetent. Staff are often poorly trained and supported internally. The attorneys and their advisors have no power to force the banks etc to hurry up or even take note of complaints.

More and more LPAs are going to be activated in the future. One thing that the OPG could do most usefully is to get an undertaking from banks, etc to take the whole process seriously. This is coal face of disability discrimination in a quiet, despairing way where those unable to run their own finances effectively have their life savings withheld from them while the banks grind slowly through their self-imposed bureaucracy. In extreme cases the money is still not available when the donor dies. In the meantime, those with a supportive family can be bank-rolled by them. But what for those who don’t?

It is important that the banks set up specialist departments with properly trained and committed staff. An alternative would be creating an official national complaints section so that the most useless offenders are identified and can be either helped or held to account by the media?

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.