Lasting Powers of Attorney to join the digital world

What are LPAs?

A Lasting Power of Attorney (‘LPA’) is a legal document that allows you to appoint another person or persons to act on your behalf should you no longer have the capacity or ability to make your own decisions. Currently, the only way of setting up an LPA is by completing a 24-page paper form, having all relevant parties sign the form via wet-ink signatures, and then posting the original form to the Office of the Public Guardian (‘OPG’) for registration. 

In 2023, one million LPA applications were submitted to the OPG, and currently there are over six million registered LPAs in England and Wales - a huge daily backlog of paperwork for the OPG to deal with that plays a large role in the time it takes them to register an LPA. Present registration estimations are roughly 20 weeks from submission (assuming there are no errors, or requisitions raised).

What are the changes and why are they making them?

You will soon be able to make LPAs electronically, but only the person making the LPA (known as “the donor”) will be able to register it, unlike the current process which allows attorneys to do so. 

The idea is that a donor will be able to register for an online account which is set up with two-factor authentication and create an LPA via 3 online forms. 

Form 1:  The 1st form is to be completed (alongside payment of the necessary fee) by the donor (or their legal representative) and will include details of the donor, certificate provider and attorneys. 

Form 2:  The 2nd form is to be completed by the certificate provider, who will review the application and confirm that the donor understands the LPA and is not under any pressure or influence in making it. 

Form 3:  The 3rd and final form is then for the attorney to review the application and complete. At this stage, it is unclear how the online system will work, and whether wet signatures will be required at all. The signing section may consist of a simple ticking of a box, or it may require signing a paper form.

At present, the applicant has the responsibility of notifying the named persons specified by the donor in the LPA. Under the new system, this responsibility will pass to the OPG instead. Additionally, the online system will introduce an identity verification process which should assist in any concerns relating to fraud – after all, if the OPG aren’t satisfied with the ID for all parties, then they will not register the LPA.

Third parties will also be able to object which may prove to be beneficial (e.g. if a care provider was aware of any information to suggest not appointing a particular attorney). Currently, all objections are dealt with by the Court of Protection (‘COP’) but, going forward, the OPG will deal with them directly through the online system, thus expediting the objection process. If the OPG does not have sufficient evidence, then the objections will not affect the LPA registration. However, if sufficient evidence is obtained, the OPG will only be permitted to register the LPA if directed by the COP.

Through the online system, it will also be easier to locate and fix errors, rather than waiting for more paperwork to be posted back and forth. The intention is to reduce the overall timeframe from submission to registration - a process which currently takes 20 weeks but, through the introduction of the online system, could drastically change to 2 weeks!

It is not clear when the changes will come into force, however, it is important to note that the current system isn’t going to be scrapped (you should still be able to make paper applications, for those who are less tech savy) but, through the introduction of LPAs into the digital world, the goal is to make the process more secure, accessible and quicker. We still need to wait and review the detail however, to ensure that adequate safeguards remain in place for those more vulnerable clients. 

If you would like to make a Lasting Power of Attorney or have any questions, please contact our team on 01926 354704 or email:  pcnewenquiries@moore-tibbits.co.uk

Article by: Ellie Davenport | Solicitor