Proposed Digitalisation of Lasting Powers of Attorney (“LPAs”)
Other than a Will, arguably a power of attorney is one of the most important legal documents that a person will ever make. That is not to say that a Will is not equally important, but people tend to plan for their death (when they can bring themselves to think about it) but not for losing their mental capacity. Whilst dementia and Alzheimer’s are on the rise in our ageing population, mental capacity can be lost at any age and at any time through illness or injury. Preparing LPAs allows you to plan for that unknown event and are therefore very important.
What are LPAs?
LPAs are legal documents which confirm who will help you to make decisions or make decisions on your behalf if you were to lose mental capacity. These are your attorneys and you choose who you want to appoint. A person has to make their own LPAs and they can be prepared by any person who is over the age of 18 and has the ability to make their own decisions. There are two types available:
- property and financial affairs which covers but is not limited to decisions regarding your bank accounts, bills, property etc; and
- health and welfare which covers decisions regarding your medical treatment and care.
The documents have to be registered with the Office of Public Guardian (“OPG”) to be effective.
Changes are coming to the way LPAs are prepared and registered. Currently the whole process is paper based. There is the option to undertake the process online but ultimately all forms still need to be printed off and signed with the original wet signatures being sent to the OPG for registration. The OPG is therefore drowning in paper and, what should take 8 weeks, is presently taking in the region of 20 weeks.
Consequently, Conservative MP Stephen Metcalfe brought a Private Members Bill to government with the aim of modernising the system by allowing LPAs to be made digitally and/or on paper with an electronic record that could be used as evidence of the LPAs registration. We are currently awaiting the outcome of the Bill, but note that it has been backed by government.
If the Bill is passed, there are a number of changes that will be implemented to the process of preparing and registering LPAs which aim to make it simpler, quicker and safer. Some of these changes include:
- offering a new quicker digital process,
- the LPA being available electronically to third parties such as banks and care homes (thereby making it easier for attorneys to prove their appointment without having to get certified copies),
- it will allow a wider group of people being able to alert the OPG about concerns they might have,
- the requirement for only the donor (the person making the LPAs) to be able to register their own LPA(s) and not attorneys,
- mandatory identification checks for registration to check that people are who they say they are.
However, with all the expected advantages (one being reduced paper waste), what is not clear is how vulnerable people will be protected when making LPAs. Without adequate protections there will inevitably be an increase in litigation over contested LPAs and more vulnerable people being taken advantage of. Voided LPAs will leave those who have already lost mental capacity in even more difficult circumstances. Seeking legal advice and assistance to prepare your LPAs will provide some protection and decrease the chances of the document(s) being successfully challenged. An expert at IBB Law will be able to advise you on what the LPAs are, what they do and ensure that the documents are drafted in a way to meet your requirements and to include wording that does not invalidate the document or make it unworkable. We will also be able to advise you on considerations of who to appoint as your attorney(s) and if you do not have anyone suitable to act, we can also offer this service to you as professional attorneys. Trained in this specialist area, we can prepare the documents being mindful of usual issues which result in LPAs being rejected by the OPG at registration, and take away all of the stress by completing the whole process for you, including registration. If you are interested in finding out more information about this subject, a member of our private client team would be happy to assist you. Please contact our offices to arrange a meeting.