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Modernisation of the Lasting Powers of Attorney process - what you need to know

Modernisation of the Lasting Powers of Attorney process - what you need to know

Broadly, Lasting Powers of Attorney (“LPAs”) enable an individual (the “donor”) to appoint another person(s) (the “attorney(s)”) to make decisions on the donor’s behalf if the donor is no longer able to make their own decisions.  An LPA can be made in relation to property and financial affairs, or health and welfare.

LPAs were introduced in 2007 as the successor to Enduring Powers of Attorney (“EPAs”).  To date, LPAs (and prior to that EPAs) must be made using a paper application.  This is set to change under the Powers of Attorney Act 2023 (the “Act”) which paves the way for a new digital process.

Digitisation of the LPA is underway

The Act, which received Royal Assent on 18 September 2023, modernises the process for putting into place these important and highly relied upon documents by enabling it to be brought online. 

The Office of the Public Guardian (the “OPG”), the organisation responsible for registering LPAs, is now developing the new online system, which it is hoped will simplify the process of making an LPA, reduce registration times and create and improve safeguards to protect against fraud and abuse in the LPA-making process.

The Key Changes

·         Bringing LPAs online

Following implementation of the new online system, the donor will be able to choose whether to make an LPA online or on paper (or using a combination of both).

Registration of the LPA will be evidenced through the electronic record.

·         Safeguarding against fraud and abuse

The Act seeks  to strengthen safeguarding measures by allowing for regulations on how the OPG will check a person’s identity, who will need to verify it, what documents will be accepted and how the documents will be checked.

Under the new system, only the donor will be the able to register the LPA.

The OPG will have a more stringent notification process to notify parties when a request for registration of an LPA is received.

A wider group of interested parties will be permitted to object to the registration of an LPA, with the OPG being able to carry out an initial assessment of the objection (without the involvement of the Court of Protection at that stage) and register the LPA if it considers the evidence supporting the objection to be insufficient.

·         Other changes

Other changes include allowing chartered legal executives to certify copy LPAs, in addition to solicitors, notaries, etc.

Drawbacks to the changes

One view is that retention of paper applications is required to ensure that individuals without access to or unable to use the new online technology are not disadvantaged by LPAs being digitised. 

In addition, some within the industry consider that the Act should have provided additional support to certificate providers (a certificate provider being the person responsible for confirming that the donor understands the terms and effect of the LPA) by including further guidance on the role of the certificate provider and the certificate provider’s need to ensure the donor has mental capacity at the time of making the LPA. 

Next steps

Whilst the LPA digitisation process is progressing, there is still some way to go.  In particular, the new system will need to be tested to ensure that it is both simple to use and secure. We also wait to see how the provisions of the Act are implemented under secondary legislation.

In the meantime, please get in touch with Caroline Belam or Hemisha Patel  if you would like to discuss putting in place LPAs.  Our team has extensive knowledge and experience on these matters.