16 June 2022

Modernisation of Lasting Powers of Attorney

By Miranda Marshall, Director, Hayes + Storr.

The Government’s response to the consultation on modernisation of Lasting Powers of Attorney (LPAs) was published in late May. A LPA is a legal document by which the person making it (the donor) gives power to make decisions to one or more others (the attorney(s)).

The public were largely positive to the idea of using technology to evidence execution. Professionals, however, were sceptical and preferred to increase the role of the Certificate Provider. The Certificate Provider is an independent person (often a qualified lawyer or doctor) who provides an additional safeguard to confirm understanding and lack or fraud, undue influence or pressure. Both approaches meant there could be a difference in the future between how donors and attorneys execute the LPAs, as the donor is inherently more vulnerable, often. The value of the role of witnesses was considered and, if there is a value, then, how to retain that value within a future LPA service.

The Office of the Public Guardian’s (OPG) remit was considered; in particular, ways to widen the powers of the OPG in law to provide clarity on the checks it can carry out and the actions it can take following up on those checks.

Generally, there was favour for identity checks, which would require the donor and attorneys all to provide identity information. A system of conditional checks would be developed, along with exiting safeguards. However, there would be no additional suitability checks on attorneys, such as criminal background checks. The donor will be identified in a modern way, and this will include a range of identification options to ensure access for everyone.

The consultation examined how to clarify and streamline the objection processes. Currently, the law surrounding LPAs sets out different processes for different types of objections. The intention is that the objection system will be widened to enable anyone to object to the LPA registration. The OPG will have power to refer cases directly to the Court of Protection, the judicial forum of which the OPG is the administrative arm. Objection at any point from the creation of LPAs to registration, to include objections by third parties, is to be considered.

The Government wants to integrate a digital LPA “channel” with document and case management systems. Many professionals are not keen to be required to use a digital service, but this might be enforced. Many felt that a paper alternative should continue to run alongside the digital service with similar enhancements. The Government says it is committed to ensuring a paper channel remains available, but only for those who need it.

The idea of a new urgent service was considered and indeed could be beneficial. Of course, it would be overused including when completely unmerited, and so the idea of an urgent service was discounted.

Many took the opportunity to raise questions about the performance of the OPG which is viewed as having been woeful in recent years. The pandemic was, of course, given as the explanation.

In response to comments on the difficulties faced when trying to use an LPA with third parties such as banks, the OPG has said it will continue to develop and roll out its “Use an LPA” service.

There is no plan to introduce an amendable LPA even though many felt that it was too difficult, if not impossible, without starting afresh, to make changes once the LPA is registered.

There was to be no merger of the Health and Welfare and Financial LPAs but the limiting of duplication of efforts is to be investigated.

The OPG were not keen to promote the involvement of solicitors in making LPAs although many professionals felt their input should be mandatory and certainly encouraged.

The changes will require amendments to the Mental Capacity Act 2005 through primary legislation and this will be implemented when parliamentary time allows.

For further information, please contact Miranda Marshall on 01263 712835 or email miranda.marshall@hayes-storr.com.

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.

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