The Ministry of Justice and Office of the Public Guardian launched a consultation in 2021 to review the effectiveness of the LPA process.
LPAs were introduced in 2007 with a process that demands completion of paper forms, which then generates further paper communications including notification to those listed in the LPA and registration of the LPA with the OPG. The process can take some time to complete and creates a great deal of paperwork.
The Lasting Power of Attorney is an important legal document creating flexibility, protection and reassurance for those who grant them, but the ever-increasing volume of applications, together with a rapid transition to online services and a need to reduce the time it takes for an LPA to be completed, meant that reform was required.
What is a Lasting Power of Attorney?
Through an LPA, an individual appoints attorneys, or representatives, to act on their behalf and make decisions in respect of health, welfare, property and financial affairs in the event that they become unable to do so themselves.
LPAs are invaluable for those close to people who may have been taken ill, who are in care or who may have lost the physical or mental ability to look after their own affairs.
Trusted attorneys appointed by the individual are able to access finances, deal with property and make decisions relating to the individual’s health and care through the LPA.
Lasting Powers of Attorney were introduced in 2007 under the Mental Capacity Act 2005, replacing the Enduring Power of Attorney process. LPAs must be registered with the Office of the Public Guardian, which supervises the LPA system and takes action against those who may be abusing their position.
A Lasting Power of Attorney granted in England and Wales is recognised in Scotland too – and vice versa – where an organisation or institution accepts it. Additional endorsement may be required, but this would be for each organisation to decide in the circumstances.
The reform proposals
Following consultation with parties including Age UK, the Law Society and the National Mental Capacity Forum to identify the needs of those granting LPAs and ensure that reforms improved their experiences rather than creating further barriers.
The key reform is to digitise the LPA system, allowing donors to appoint attorneys online. Not only will this make savings on the OPG’s paper bills, but it will simplify the process for the general public, making LPAs more accessible, faster to complete and register, and more straightforward.
It is anticipated that application errors will be reduced, again saving on administration costs and resulting in a faster registration for the donor.
To enhance security and safety processes which combat fraud and abuse of an LPA position, new safeguarding and identification verification systems such as passport and driving licence checks will be introduced, and the witnessing of an LPA will also be simplified.
Can I still complete a paper LPA application?
Digital isn’t for everyone, which is recognised by the OPG. Paper applications will therefore still be processed for those who rely on more traditional methods of communication, such as the elderly or more vulnerable people.
The Law Society’s President made it clear in her response to the consultation that the government needed to consider those who struggle with digital, or who have poor access to digital services, to ensure that reforms do not negatively impact them.
Are there any potential risks?
It’s tricky to eliminate all risks with a digital-based system. Following the introduction of LPA reforms, and despite identification checks, there may still be those who take advantage of their position as an attorney of an elderly or vulnerable person.
Individuals may not appoint a solicitor to manage their LPA application, and the absence of legal advice may lead to the appointment of attorneys who are not suitable and/or do not make decisions in the donor’s best interests.
When will the LPA reforms be implemented?
As yet, we don’t know what the new system will look like. However, the announcement of the proposed changes helps us to understand what’s coming and we’ll be closely watching out for further developments in the coming months.
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