Modernising lasting powers of attorney – Law Society response
The Ministry of Justice (MoJ) has proposed changes aimed at improving the speed and accuracy of making lasting powers of attorney (LPA), using digitalisation to achieve this.
Whilst agreeing with the basic aims, we believe there are areas of genuine concern, and these are raised in our response.
In particular, we’re concerned that there should be sufficient safeguards in place within the LPA process for the most vulnerable.
LPAs give sweeping powers over life decisions when an individual’s mental capacity is diminished – delegating a whole raft of issues to a nominated person (the ‘attorney’) to make calls on everything from finances to living arrangements.
LPAs are arguably one of the most important legal documents a person will make, because they delegate such wide-reaching powers over their life.
After the LPA has been registered, there is time for anyone to raise a concern, and, if necessary, the Court of Protection can decide that the power should not be registered with the Office of the Public Guardian (OPG).
We want to make sure these safeguards are not put at risk due to the Ministry of Justice and OPG’s consultation, which seeks to:
- make the process simpler and easy to use
- keep LPAs affordable
- add new measures to protect against fraud and abuse, and
- move to a predominantly digital service
The digital service and paper channels
Our overarching concern is that the consultation fails to address how the proposals will work for those who cannot access a digital service.
It also fails to address the need to ensure that the role of the certificate provider works within a digital process as was intended when the Mental Capacity Act 2005 was passed.
The consultation does not explain how the new proposals will impact on paper channels for LPAs.
Many people, such as those in care homes or people with learning difficulties, will need to make an LPA via a paper process. However, the digital service which currently exists is complicated and hard to use, even for those who are digitally literate.
Additionally, many people in the UK do not have access to the internet, with five million people over the age of 55 not online.
Ambiguities in the proposal
We’re still faced with significant ambiguities. For example, it’s unclear:
- whether the proposal is for the LPA to remain a deed
- whether the proposal is for the role of the witness to be merged with the role of the certificate provider, and
- exactly how the actors to the LPA (such as donor, attorney or witness) will evidence that they executed the LPA
These questions must be cleared up if the UK government is to act in the best interests of those obtaining LPAs, and protect the most vulnerable, as it seeks to modernise a system which has been in place for 14 years.
Through the consultation, the MoJ is seeking to gather further views and evidence on its proposals.
The MoJ will use the responses to inform its approach to modernising LPAs.
The consultation closes on 13 October 2021.
The timetable for taking this forward has not been made public.