On 14th September 2023, the UK Parliament passed, without amendment, the Powers of Attorney Bill (the “Bill”), which will make substantial changes to the procedure for making Lasting Powers of Attorney (LPAs) in England and Wales.
The Bill will enable modernisation of the process for making and registering LPAs so individuals should find it easier to create LPAs, while being better protected from abuse.
What are LPAs and why are they important?
LPAs are legal documents allowing for an individual (the “donor”) to appoint one or more trusted people (the “attorney/s”) to manage their affairs and make decisions on their behalf if required and most commonly in the event that they lose mental capacity.
If LPAs are not in place and you lose mental capacity, the process for someone to make an application to the Court of Protection to be appointed as a Deputy to make decisions on your behalf can be costly and time-consuming, possibly taking up to several months.
We suggest LPAs should be seen as being similar to an insurance policy in that, hopefully, they will never be required but, should you be unable to make decisions in the future, you can be confident that you have provided legal authority allowing trusted people to act on your behalf.
Amendments to the Mental Capacity Act 2005
When the Bill comes into force (on a date yet to be set), it will make the following amendments to the Mental Capacity Act 2005:
- Only the individual who created the LPA will be able to apply to register the LPA. The attorney’s ability to register the LPA will be removed;
- This change will ensure that the person creating the LPA has sole control over the timing of registration. We advise our clients in nearly all cases to register LPAs as soon as they are created, so that they are available for immediate use if required. LPA registration is currently taking up to, and sometimes more than, 20 weeks. A person wishing to create an LPA but delay registration should obtain legal advice on the potential consequences of the delay, as losing capacity prior to submitting the application to register will become more problematic once the Bill is in force.
- The Office of the Public Guardian (“OPG”) will be solely responsible for giving notice to those named in the application that an LPA has been sent for registration, rather than the person submitting the application to register the LPA;
- The OPG taking on responsibility for notification is a positive change, ensuring that the ‘notifiable person’ is directly notified. Time will tell whether this additional administrative burden will prove manageable by the OPG.
- There will be a single route for all objections to the registration of an LPA, including objections from third parties, starting with the OPG and progressing to the Court of Protection if required;
- The inclusion of third parties is a positive additional safeguard, in cases where the third party has knowledge of the application, despite having no direct involvement with the creation or registration of the LPA.
- The introduction of identity checks as a requirement of registration;
- The requirement to verify identity will be an important safeguarding measure against fraudulent applications, particularly where a legal professional is not involved.
- An office copy provided by the OPG and electronic forms of LPA registration may be used as evidence of its content and fact of an LPA registration.
- In an increasingly digital world, this is helpful. Often, clients may misplace certified copies and even original LPAs, so the ability to use an office copy as evidence of registration is useful. The OPG already provides an online access code upon registration of LPAs. This service allows the user to view a summary of an LPA on the OPG’s website and check the validity of an LPA. For LPAs registered in electronic form, once the Bill is enacted, the electronic form will be evidence of the content and fact of registration. Financial and other relevant institutions will need to educate staff to ensure that the new verification methods are correctly adopted in practice.
Outside of amendments to the MCA 2005, the Bill also allows for Chartered Legal Executives to certify copies of LPAs as true copies of the original. By widening the net to include Chartered Legal Executives, the Bill will better align the LPA procedure with the evolution of the legal profession, as well as remedying the anomaly that allowed such a profession to act fully in the creation of an LPA but rendered them unable to certify it.
‘Safer, easier and more sustainable’ – the transition to a digital process
Registered LPAs have increased exponentially in number over recent years to more than 6 million. However, the paper-based application procedure has continued to lag behind this growth, failing to adequately evolve since Enduring Powers of Attorney were first introduced more than 30 years ago. Many of the core aspects of LPA registration such as signing, witnessing, attesting and submission to the OPG are completed using a paper-based system.
Primarily, the move to streamline and digitise aspects of the registration process will no doubt improve the efficiency and sustainability of the output of, and the administrative burden on, the OPG who reportedly handle more than 19 million pieces of paper annually.
Moreover, embracing an increasing digital approach will be beneficial to all parties in the flagging and reduction of basic administrative errors that currently result in long, arduous wait times. As Stephen Metcalfe MP explained, the Bill’s three principal goals are to make the LPA process ‘safer, easier and more sustainable’ for all involved.
A balance, of course, will need to be struck between the improved efficiency of digitisation and maintaining the correct safeguarding procedures for people making LPAs.
There is no timescale yet as to when these changes will be implemented and a paper-based system will continue to remain in place for those who either prefer to work on paper or do not have access to the internet.
Our expert, dedicated Private Client Team have years of combined experience advising in connection with LPAs. Please do not hesitate to contact us if you would like further information or advice.
The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.
