On 19 May 2022, the Government announced that the process of managing a loved one’s affairs by way of a Lasting Power of Attorney (LPA) will be strengthened and modernised under major reforms.
What is an LPA?
An LPA is a useful legal document that allows a donor to appoint attorneys to deal with decisions regarding their health and welfare and/or property and financial affairs, should they become unable to do so in the future.
LPAs were introduced in 2007 as part of the Mental Capacity Act 2005. This replaced the previous system of Enduring Power of Attorney that had been in place since 1986.
Once prepared, an LPA must be registered with the Office of the Public Guardian (OPG). The OPG plays a supervisor role and in addition to registering LPAs, its responsibilities include:
- Taking action where there are concerns about an attorney, deputy, or guardian;
- Maintaining the registers of attorneys, deputies, and guardians;
- Supervising deputies and guardians appointed by the Courts, and making sure they carry out their legal duties; and
- Looking into reports of abuse against registered attorneys, deputies, or guardians.
Current regime
At the time of its introduction, the current LPA regime was designed to provide flexibility and sufficient protection to individuals.
The service is operated by the Office of the Public Guardian (OPG) and involves a heavily paper-based procedure, including the completion of a number of forms. In fact, it has been reported that the OPG handles more than 19 million pieces of paper annually!
Once the relevant forms have been completed, a donor must then send a form to formally notify all of the people listed in the LPA. Those people will then have three weeks to raise any concerns with the OPG. Thereafter, the LPA must be registered with the OPG and this can take up to a further 20 weeks. The reform hopes to ‘slash waiting times’.
Whilst this system has operated successfully for many years, the number of registered LPAs has increased drastically in recent times and people predominantly want to access services digitally. A change to the service is therefore much needed. The digitisation will assist in reducing errors from donors, attorneys, and others involved in the process by ensuring these can be picked up and fixed early on.
Proposed LPA reforms
In light of the problems posed by the current service, the Ministry of Justice and the OPG launched a consultation in July 2021 which concluded in October 2021.
During the consultation, initial proposals were developed following engagement with a wide range of stakeholders, such as Age UK, the Law Society, and the National Mental Capacity Forum, to ensure that the proposed changes will work for those who rely on LPAs to manage their affairs.
Ministers have subsequently set out plans to significantly transform the current system. Under the proposals, people will be able to make an LPA completely online for the first time which will bring it in line with many other online Government services.
It is envisaged that the changes will:
- Make the process simpler, quicker, and easier to use by the public;
- Reduce application errors and speed up the process of registration;
- Provide new safeguards which will protect against fraud and abuse (including new identification checks to strengthen the verification process); and
- Improve and simplify the witnessing process.
Will the new system work for everyone?
Under the new regime, the current paper-based system will continue to operate which means that people can choose an accessible process that is best for their specific needs. Clearly, the Government does recognise that there are categories of individuals who will continue to need to make an LPA via the traditional paper route.
However, concerns have been raised about the potential impact of digitalisation on those who are disabled, vulnerable, and elderly.
In its response to the Government’s consultation, the Law Society has stated that although it welcomed the Government’s commitment to improving the current process, more is needed in order to protect the disabled and vulnerable from the modernisation of LPAs.
The president of the Law Society, I. Stephanie Boyce, made the following comments:
“LPAs are arguably one of the most important legal documents that a person will make because they delegate such wide-reaching powers over their life… The consequence of an attorney making a poor decision could be the loss of all their assets, being put into a care home against their current or past wishes, or even their premature death.”
“We are pleased the Government is looking at proposals to improve support for those who will struggle with using digital channels, as more needs to be done to ensure the reforms do not negatively impact vulnerable, disabled or older people.”
Comment
The changes are a reflection of the need to carefully balance modernisation in an ever-developing digital world, with safeguarding the rights of vulnerable people and protecting those who have lost the capacity to manage their affairs.
When putting in place an LPA it is important to obtain legal advice and at Nelsons we can assist with the preparation and registration of these documents.
How can we help?
For further information on the subjects discussed in this article or any related topics, please contact a member of our Wills & Probate team on 0800 024 1976 or via our online enquiry form.