Holly Mieville-Hawkins, head of mental capacity at UK law firm Michelmores, explains what a modernised lasting power of attorney system might look like
By Holly Mieville-Hawkins, head of mental capacity at UK law firm Michelmores
In 2007, the Mental Capacity Act 2005 introduced Lasting Powers of Attorney (LPAs) which for the first time allowed a donor to appoint an attorney to make decisions both about their property and financial affairs, but also about their health and welfare.
In early autumn 2021, the government ran a public consultation entitled ‘Modernising Lasting Powers of Attorney’. Alex Chalke MP, the minister responsible for the consultation, stated: requiring a wet signature on a paper deed is “no longer suitable for a new digital world.”
Yet, while the changes discussed in the consultation were intended to improve safeguards to protect against fraud and abuse, the proposed shift to a predominantly digital service has raised significant concerns among professionals in the sector.
Change is overdue
The UK has an ageing population, which has contributed to the doubling of LPA registrations between 2014/15 and 2019/20. The current number of registered LPAs stands at around six million.
This elderly demographic is among those at the highest risk of experiencing fraud. In 2021, there were five million instances of fraud in England and Wales, with the elderly and vulnerable most at risk. In fact, every 40 seconds an older person falls victim to fraud.
The government’s proposal purports that with digitisation LPAs will become even more secure – stating, quite rightly, that ‘new ways of achieving the same, or better, levels of protection must be identified’. But does the government’s response to a consultation on modernising the process live up to expectations?
What has the government proposed?
The government published its report and recommendations in May 2022. Here’s what you need to know:
Witnesses: It was proposed that the role of the witness is removed, however, it was felt that the role brings significant legal and psychological protection to the process. The government will therefore investigate whether technology can be used to avoid the need for the donor, attorney and witness to all be in the same room when the document is signed.
Certificate provider: Following the role of the Certificate Provider being wrongly cited in the consultation, there is the possibility of merging the roles of the witness and Certificate Provider. Example questions will be drawn up to help Certificate Providers confirm the donor’s mental capacity, and awareness will be raised about the role.
LPA as a deed: The discussion around the role of the witness raised questions about LPAs remaining as deeds. It was decided LPAs are to stay as deeds – for continuity, to protect their international status, and to retain the 12-year limitation period on making a claim against an attorney.
ID and attorney suitability: The possibility of security and ID checks on attorneys was discussed. It is clear that the right balance between providing safeguards, avoiding delays and giving the donor freedom of choice is imperative. ID checks will apply to donors and witnesses. Checks on attorneys are being considered.
How to object to the creation of an LPA: Objections are to go directly to the Office of the Public Guardian (OPG) and can come from anyone, not just specific individuals, reducing the negative impact on objections as donors no longer have to notify third parties.
When to object: Objections can be made during the creation stage to raise timely concerns and speed up investigations. Statutory waiting time could be reduced from four to two weeks.
Protecting the most vulnerable in society
Digitisation may be the most logical way forward, but online applications and the possibility of virtual witnessing present their own risks of fraud and abuse taking place. The move towards digital LPAs could be far from supportive or enabling of an elderly person who is not a confident computer user. The fundamental purpose of an LPA is to protect the needs of the most vulnerable in society and modernisation of this system must be carried out thoughtfully, with safeguarding as the top priority.
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