Lasting Power of Attorney modernisation must protect the most vulnerable

It’s time to modernise the process of obtaining lasting power of attorney (LPA), but only with sufficient safeguards in place for the most vulnerable, the Law Society of England and Wales warned as it responded to the LPA consultation.

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 that a person will make because they delegate such wide-reaching powers over their life,” said Law Society president I. Stephanie Boyce.

“To give this some context, the consequence of an attorney making a poor decision could result in the loss of all their assets, being put into a care home against their current or past wishes, or even their premature death*.”

As such, the LPA regime contains certain safeguards deployed when the deed is drawn up. This stipulates the need for an independent person – the certificate provider – to form an opinion that the person knows that they’re signing.

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 (MoJ) and OPG’s consultation, which seeks to simplify the process, to keep LPAs affordable, and to move to a predominantly digital service.**

I. Stephanie Boyce added: “While we support the MoJ and OPG’s aim of improving the LPA regime by making it digital, we have areas of genuine concern.

“Our overarching concern is the consultation fails to address how the proposals will work for those who cannot access a digital service; nor does it 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, and the digital service which currently exists is complicated and hard to use, even for the digitally literate.

“Additionally, many people in the UK still do not have access to the internet.”

The Office for National Statistics found that 5 million people over the age of 55 are not online.

I. Stephanie Boyce concluded: “We are still faced with significant ambiguities. For example, it is unclear whether the proposal is for the LPA to remain a deed; it is unclear whether the proposal is for the role of the witness to be merged with the role of the certificate provider; and it is unclear exactly how the actors to the LPA will evidence that they executed the LPA.

“These questions must be cleared up and we call on the UK government to act in the best interests of those obtaining LPAs and protecting the most vulnerable as it seeks to modernise a system which has been in place for 14 years.”

Notes to editors

Read our consultation response in full

Read the MoJ and the OPG’s consultation on modernising the lasting power of attorney service

Read the Office for National Statistics report on exploring the UK’s digital divide

* This is an end-of-life issue and relates to a welfare LPA – where the donor can give the attorney power to make the decision to consent to or refuse life-sustaining treatment for the person.

** The MoJ and the OPG began a 12-week consultation into modernising the LPA service in July 2021.

In November 2020, the Law Society attended a roundtable hosted by the MoJ and the OPG, which sought engagement between core stakeholders and the UK government on the key points of modernising the LPA process.

Find out more

A lasting power of attorney is a legal document that lets you appoint one or more people – known as attorneys – to help you make decisions or to make decisions on your behalf.

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Press office contact: Naomi Jeffreys | 020 8049 3928

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