The Mental Capacity Act 2005 allows people to appoint someone they trust to make decisions on their behalf in the event that they lose capacity to make decisions themselves.
The legal document that facilitates this is the Lasting Power of Attorney (“LPA”) which was introduced in 2007.
The government is proposing to move the system of making and registering LPAs fully online. Their key aims are to improve the process of making and registering LPAs, and to improve the sustainability of the process while keeping it affordable and maintaining safeguarding. The government have identified a demand for a digital service, as donors and attorneys have reported that they find the process of making an LPA cumbersome and complex. This demand has been accelerated by the pandemic, which has highlighted issues with traditional signing formalities in light of social distancing measures (LPAs are deeds and need to be signed in the physical presence of a witness), and because technology has progressed so that there are now effective forms of identity and information verification other than wet ink signatures.
There are many potential benefits to an online LPA system. It would be more sustainable, as the current process involves a large number of documents being sent to the Office of the Public Guardian (OPG) with a significant environmental impact. An online system would also save the OPG the costs of storing and processing the forms.
An online system would enable LPAs to be made and registered more quickly. Error checks would be automated, helping to reduce the number of applications which contain mistakes. This would save resources for the OPG which should speed up the process and alleviate situations where errors are found too late and the donor has already lost capacity and cannot correct the error or register the LPA.
The consultation proposes to remove the witness requirement for donors and attorneys signing LPAs, instead using an Advanced or Qualified Electronic Signature or equivalent to verify an individual’s identity. The government acknowledges that effective ID checks would need to be introduced to replace this requirement: a sophisticated electronic signing system would be required which would gather data points such as time stamps and the location of the signatory, to effectively verify an individual’s identity. Furthermore, if, as it is proposed, the OPG are granted wider powers to accept or reject LPAs based on checks including enhanced ID checks, this could help limit fraud in the making of LPAs. A dedicated solicitors’ portal is proposed, which would be very welcome indeed, and likely reduce the professional fees for clients making LPAs.
The government’s proposals also include reducing or removing the statutory waiting period which currently exists, during which objections to an LPA can be made before it is registered. This could limit the opportunity for people to object where they are concerned, for example, that a family member has been coerced into making an LPA or does not have capacity to make one. Whilst increasing the speed at which LPAs can be made could be beneficial for individuals who are about to lose capacity, it could also limit legitimate objections from being raised and could facilitate people making rushed and ill-thought through decisions about who to appoint as attorney and how they should act.
It is vital that the government balance their desire for a faster and more efficient system with appropriate protections for individuals. The consultation is open for responses until 13 October 2021.