Modernising Lasting Powers of Attorney
Earlier this year the responses to the Government’s consultation on modernising Lasting Powers of Attorney (LPA) were published.
The project was launched in response to public feedback that the LPA creation process is “cumbersome, bureaucratic and complex” and its purpose was to gather evidence on how best to modernise LPAs. This has culminated in the Powers of Attorney bill (“the bill”) which has just received its second reading in Parliament.
Various aspects of the LPA process were considered in the consultation some of which have been varied by the bill:
Possible improvements to the process of witnessing the various signatures to an LPA were considered. Three approaches were examined: the removal of witnesses, the introduction of remote witnesses and replacing witnesses with another body fulfilling a similar function. The third approach was favoured by the Government as it was felt that this retains an important safeguard in the creation process against abuse of LPAs. This was also the least unfavourable option for the consultation respondents, who included individuals and organisations with a professional interest as well as members of the public. Concern about dilution of safeguards was expressed in relation to all three options. The Government’s response is that it intends to continue to investigate the possibility of a technological alternative to a witness alongside consideration of whether a witness is in practice a safeguard and no changes have been included in the bill.
The introduction of LPAs to replace Enduring Powers of Attorney brought with it the role of the certificate provider who is either a specified professional or someone who has known the donor of the LPA for at least two years. The certificate provider’s role is to confirm that the donor understands the LPA, to establish that no fraud or coercion to make the LPA is being placed on the donor and to confirm that there is no other reason why the LPA cannot be executed.
The Government stated that it intends to investigate combining the role of certificate provider and witness, particularly as it was thought that having the certificate provider present at the execution of the LPA strengthens safeguards. The certificate provider would not, however, witness the attorney’s signature.
In the consultation response the Government confirms that the certificate provider’s role is not to carry out a capacity assessment of the donor and it undertakes to provide additional guidance to bring greater clarity to the role. By comparison, the Law Society’s view is that certification should expressly include consideration of the donor’s capacity. The government plans to provide greater support for the certificate provider and introduce a way for them to raise concerns direct with the Office of the Public Guardian (OPG).
There is no intention to introduce a requirement that the certificate provider should be a professional, due to concerns about access and a feeling that someone who has known the donor for some time might be able to make a better assessment than a professional, perhaps meeting the donor for the first time.
At present a Property and Affairs LPA cannot be used until it has been registered with the OPG and this can take place immediately after execution or at any other time. Both the Government and professionals believe registration after execution is best practice as it enables queries to be dealt with when the donor has capacity and avoids delays when the LPA needs to be used. The bill changes the current provisions so that only the donor can apply to register their LPA which in practice means that registration will have to occur at a time when the donor retains capacity. Under the terms of the bill the OPG will notify the donees and the named person(s) about the application to register the LPA.
No identity checks are currently carried out on the parties to an LPA, but the bill provides that these are to be introduced by regulations on those named in the LPA or involved in the registration process. The LPA will not be registered without satisfactory ID checks.
While any objections to registration can now go to either the OPG or the Court of Protection these will now go initially to the OPG who will consider whether evidence has been supplied which reasonably supports the objection, but objections will be permitted from anyone including third parties. If evidence is supplied which supports the objection the LPA cannot be registered unless the donor or attorney apply to the Court of Protection and the Court directs the OPG to register the LPA.
An urgent service
Consideration was given in the consultation as to whether an urgent service (with a two week turnaround) could be made available-this would necessitate removing the waiting period and carrying out manual checks. Proof of the need to access the service would also be required. This proposal was rejected in favour of “an optimal speed of service for all donors”. This is in line with the views of the majority of consultees who did not support an urgent service due to worry about safeguards, additional cost and possible further delays to the standard route.
Future regulations will provide for making LPAs digitally or on paper and the bill makes provision for a record in the register of an electronic LPA to be proof of that LPA. Certified paper copies will remain and the bill provides that these can be certified by Chartered Legal Executives in addition to those currently authorised.