The Ministry of Justice’s consultation paper on ‘Modernising Lasting Powers of Attorney’ (in England & Wales) was published on 20 July 2021. It invited comments on proposals to modernise the lasting power of attorney service, overseen by the Office of the Public Guardian. The consultation closed on 13 October 2021, and the consultation response was published on 19 May 2022. The full document is available here, together with an impact assessment. The headlines in terms of what the government intends to do next are set out at pages 100-107. In headline terms, the steps are as follows:
The role of the witness
The government intends that there remains a way to evidence the execution of the LPA by the donor, and will therefore:
- Continue to investigate the possibility of using technology to replace the witness with a similar (digital) function within the digital channel.
- Investigate whether to combine the role of the certificate provider and the witness in relation to execution of the LPA by the donor.
- Consider whether retaining a mechanism to evidence the attorney’s execution of the document provides a safeguard to an LPA.
The government intends to ensure that the LPA continues to be treated as a deed even if changes are made to the requirements for witnessing an LPA.
Separately, the government intends to clarify the role of the certificate provider in assessing the donor’s understanding of the LPA and protecting against fraud, abuse and undue pressure. This will be done through additional guidance and support for those carrying out this role.
The government will not introduce a requirement that the certificate provider be a professional.
Role of the application
The government intends to proceed with developing a system of conditional checks and not
discretionary checks, including
- Considering whether checks on the attorney are necessary and appropriate when considered alongside other safeguarding mechanisms that exist across the LPA process, including at the point the LPA is used.
- Seeking to verify the identity of the donor and certificate provider in the modernised service.
- Considering how to include a range of identification options to ensure access for everyone.
The government will not introduce additional suitability checks on attorneys (such as criminal background checks).
How to object
The government intends to provide that the OPG receives all objections to registration. This will include amending legislation to (1) permit objections to the registration of an LPA from anyone; and (2) give OPG the power to refer cases directly to the Court of Protection where necessary.
When to object
The government will:
- look at a system that allows objection from before creation up to the point of registration
- Investigate a method for people to raise objections during the creation of an LPA.
- Consider introducing a system that permits objections to be registered by a third party before the LPA process is started. Government will test the feasibility of such a system and will consider which third parties should be permitted to object.
- Commit to keeping a statutory waiting period as part of the objections process for registering an LPA and as a cooling off period for the donor.
The government will investigate what the appropriate length of the statutory waiting period should be in a future service, accounting for other changes to the objections process across both the digital and paper channels.
The government will not reintroduce a requirement to provide people to notify on an LPA.
Solicitor access to the service
The government intends to proceed with working to integrate a digital LPA channel with document and case management systems. However, it will also ensure there are sufficient powers within the legislation for it to mandate regulated legal professionals to use the digital service in the future should it be required.
Proposals not being taken further forward
The government does not intend to proceed with creating an urgent LPA service.
The consultation response summarised other views that were not directly related to proposals
but merited further consideration.:
- OPG’s current performance: Concerns were raised about OPG’s current performance, processes and level of service. OPG has been heavily impacted by the pandemic and continues to work on returning service levels to meet their targets.
- Paper process: Respondents suggested that a paper alternative should run alongside the digital service, with similar enhancements made to safeguards to ensure parity with the digital channel. The government is committed to ensuring that a paper channel remains available for those who need it.
- Use of the LPA: Several respondents commented on the difficulties faced when trying to use an LPA with third parties such as banks and healthcare professionals. To make use of the LPA easier, OPG will continue to develop and roll out its Use an LPA service.
- Amendable LPAs: Some respondents felt that LPAs are too difficult to change once they have been registered and thought it should be easier to amend these in future. Amendable LPAs remain out of scope for modernising lasting power of attorney due to the need to ensure that the benefits we are looking to realise through increased safeguards, improved access and sustainability can be achieved more quickly.
- Guidance and education: Many respondents suggested improvements that could be made to LPA and Mental Capacity guidance more broadly. At the appropriate time in development, we will work with stakeholders and the public to develop the guidance and information they need to use and understand the modernised LPA registration service.
- Merged forms: Some respondents felt that duplication of effort could be removed by merging both types of LPA. While we will not merge the different types of LPA, we will consider how we can remove duplication of data entry where information is repeated across both types.
- Require a solicitor to make an LPA: Some suggested it should be mandatory for donors to use a solicitor when making an LPA, or that more should be done to promote involvement of legal services. We will not make the use of solicitors mandatory, but OPG will continue to look at the most appropriate opportunities to provide information on seeking legal advice in the LPA process as developmentcontinues.
- Security bonds: Some suggested that government should make security bonds a mandatory requirement for LPAs. While we accept that this could provide additional protection, it should be for the donor to take this into account in determining who they trust to act on their behalf. We will therefore provide more information for donors on the option of security bonds and the protection they can provide for donors as part of a modernised process.
- Certified copies of LPAs: Several respondents to the consultation wanted the relevant legislation to be amended to allow Chartered Legal Executives to certify copies of LPAs. We will take the necessary steps to address this issue as an independent piece of work.
The changes noted above will require amendments to the MCA 2005, the government intending to bring forward legislation “when parliamentary time allows.”