As technology improves and the attitude of modern society changes, the number of Lasting Powers of Attorney (LPAs) which are being registered has consistently increased to the point where almost 1,000,000 LPAs are being registered every year. The process is still paper driven, which together with the cumbersome signing order, has left users feeling the LPA process is overly complex and bureaucratic.
The Ministry of Justice (MOJ) launched a consultation on the modernisation of LPAs in July 2021 to invite comments on proposals, which the MOJ proposed would meet the demands of an increasingly digital world whilst maintaining/increasing safe guards against fraud, abuse and undue pressure.
Following this consultation, the MOJ has announced proposed reforms, including to:
1) Use of technology to replace in person witnessing with a ‘similar function’.
2) Move to a system where execution (signing) of the LPA starts the registration process automatically.
3) Introduce automated identity checks on the donor, certificate provider and possibly the attorneys – the passing of such checks would initiate immediate registration of the LPA.
4) Allow the Office of the Public Guardian (OPG) to receive all objections to the registration of an LPA and permit objections from anyone – the OPG will retain the right to refer matters to the Court of Protection.
5) Allow objections before the LPA process has begun, during the creation of the LPA and during the statutory waiting period (which provides for the OPG to wait four weeks from acceptance of an LPA to registration to allow for objections), although the statutory waiting period may be adjusted.
6) To create a digital LPA system which integrates with existing document and case management systems.
The MOJ has confirmed that once they are registered, LPAs will remain unamendable, as is the case now. Paper LPAs will remain available but the MOJ will have sufficient powers to mandate legal professionals to use a digital service. Whilst the MOJ also looked at whether to bring in a two tier system to allow urgent applications to move forward at a faster rate, the MOJ has ultimately decided not to introduce such a system.
The MOJ’s commitment to improving the LPA process to bring it in line with the digital era is welcome, as is its decision to continue to allow paper applications. The LPA process will clearly benefit from improved speed but this must be balanced with ensuring any reforms do not adversely affect people who are vulnerable or would otherwise struggle with a digital application.
When will the changes happen? As the changes require amendments to the Mental Capacity Act 2005, the Government will bring forward legislation when ‘parliamentary time allows’, and in which case, it is not clear at the moment when these changes will take effect.