Lasting Powers of Attorney, or LPAs, are paper documents which allow people to name attorneys to make decisions on their behalf. The person making the LPA is known as the “donor”. LPAs are signed as deeds by the donor and attorneys, in the presence of a witness. A third party known as a certificate provider also signs the documents; this is a safeguarding measure, where the certificate provider confirms the donor understands what they are signing.
There are two types of LPA: Property and Financial Affairs, and Health and Welfare. A Property and Financial Affairs LPA enables the attorney to make decisions about things like bank accounts, bills and the donor’s property. Attorneys can make decisions whilst the donor still has capacity (with the donor’s permission), and after the donor has lost capacity.
The Health and Welfare LPA is for decisions about matters like medical care and the donor’s daily routine. These decisions can only be made by the attorney if the donor lacks capacity to make their own decisions.
LPAs must be registered at the Office of the Public Guardian (OPG) before they can be used. This is a long process, currently taking around 20 weeks, and requires the submission of additional paper forms to the OPG and payment of an £82 fee. In the LPA, people may name persons to be notified. If they have done so, those people will be notified as part of the registration process.
Modernisation
The government issued a consultation last year on “Modernising Lasting Powers of Attorney”.
The aim is to modernise the LPA service by introducing a digital service, becoming more sustainable (in part by reducing the volume of paper used), improving safeguards, and being more accessible for users.
What is the government proposing?
The response to the consultation was issued on 19 May 2022 and sets out the next steps the government proposes to take, having considered the responses to the consultation.
To summarise the proposals:
- The government will investigate the possibility of using technology to replace the witness with a similar (digital) function, for LPAs that are created digitally (when a digital option is available).
- The government will also investigate whether to combine the role of the certificate provider and witness.
- They will consider whether retaining a mechanism to evidence the attorney’s execution (signing) of the document, provides a safeguard.
- The government will consider removing the ability to delay registration of LPAs, meaning execution of the document starts the process of registration.
- A system of identity checks for the donor, certificate provider, and attorneys, will be considered and developed. This will not extend to additional suitability checks on attorneys.
- Legislation will be amended to permit objections to the registration of an LPA from anyone, and give the OPG the power to refer cases directly to the Court of Protection where necessary (e.g. for safeguarding reasons).
- The government will consider the methods for objection, and a system permitting objections before an LPA is registered.
- A statutory waiting period for objections to be raised will be retained, although the length of the period may change (it is currently four weeks).
- A digital LPA channel will be developed, and the government will work on integrating this with solicitors’ systems. There will still be a paper option available.
- An “urgent” service will not be introduced.
- The types of LPA will not be merged, but the government will consider removing duplication of data entry.
