The Office of the Public Guardian has introduced a new digital service for Lasting Powers of Attorney (“LPAs”). ‘Use A Lasting Power of Attorney’ went live on 17 July 2020 and all LPAs registered after this date will be able to make use of the service.
The service is intended to cut down on some of the paperwork that can surround the use of LPAs. It will work by providing the donor and the attorneys (but not replacement attorneys) with an access code when the LPA is registered. The donor and attorneys are then encouraged to set up an online account to which they can “link” the LPAs that concern them (this is a different online account to the account used to create LPAs online). Access can then be granted to various institutions such as banks and companies or doctors surgeries and hospitals. A code is then generated which can be passed to the relevant party who then have 30 days to view the online LPA.
When institutions access the LPA online, they are able to see the name and date of birth of the donors and the attorneys. They are told how the attorneys are appointed and whether there are any instructions or preferences contained in the LPA. Crucially, however, the detail of the Instructions and Preferences are not revealed, instead the institution is advised to request a copy of the paper document.
Whilst there are a number of advantages of the new system, namely that it will reduce the time taken in posting LPAs to organisations as well as cut down on the number of paper LPAs in circulation, there are, however, a number of potential drawbacks.
One of the main disadvantages, as mentioned above, is that organisations cannot view the wording of Instructions or Preferences. Given that most of the LPAs prepared by professionals will include at least one instruction or preference, a paper copy of the LPA will then need to be sent to the relevant organisation in any event. If the organisations fail to request a copy of the paper LPA, this could result in decisions being made against the donor’s wishes. Further, given that there is already an accessible register which states whether there is a registered LPA in place, it is debateable how much more this new service adds to that.
Giving organisations only 30 days to view the LPA before the activation code expires may also be somewhat problematic given the length of time some organisations take to deal with queries. Once the 30 days have expired, a new access code must be requested. This time frame will be reviewed and amended if it proves necessary. As with any new service, it will take time for organisations to get up to speed with the new service and, as yet, it is unclear whether separate access codes for health and welfare LPAs will need to be provided for different hospital departments and doctors surgeries, or whether such information will be available on a patient’s medical records.
Like with the digitalisation of all services, this new facility will be of no use to people without access to the internet or a computer.
The main concern, however, with this new service is that an attorney could begin using the LPA without the donor’s consent. A donor is not notified when an attorney creates an account or grants access to the LPA to organisations. This means that it is possible for an attorney to start using the LPA without the knowledge of the donor and, possibly therefore, against their wishes. The OPG believe that there are no fewer safeguards using ‘Use A Lasting Power of Attorney’ than with paper documents, however, given solicitors advise and take instructions on when a donor wishes their attorneys to be able to use the LPAs, it is arguable that this is not the case.
There are plans to expand the service to LPAs registered before 17 July 2020 on a gradual basis. It will remain to be seen whether there is an increase in the abuse of LPAs as a result of the new online facility being introduced.
If you would like any further information about Lasting Powers of Attorney, or any other estate planning matters, please contact us.
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