Powers of attorney: major reforms and consultation announced

The government has today (20 July) announced major reform plans to modernise the powers of attorney system. It has also launched a 12-week consultation period, which closes on 13 October 2021.

The main aims of the reform are to introduce new and improved safeguards to protect against fraud and abuse; to make the process simpler and easier to use; and to shift to a predominantly digital service.

There are more than five million registered lasting powers of attorney (LPA) in the UK; however, the predominantly paper-based LPA process is outdated.

The consultation will examine the entire process of creating and registering an LPA, with several key areas of focus.

It will consider whether the Office of the Public Guardian’s (OPG) remit should be expanded to afford it wider powers to prevent fraud and abuse – for example, to allow the OPG to carry out further identity checks and stop or delay registrations of concern. The consultation will look at making it simpler to object to the registration of an LPA and will consider appropriate timings for objections.

How witnessing works will be considered, including whether remote witnessing or other safeguards are desirable.

Administrative processes will be contemplated, including how to reduce the chance of an LPA being rejected due to avoidable errors, and how solicitors access the service and the best way to facilitate this. The consultation will look at whether an ‘urgent’ service would be beneficial in some scenarios.

Finally, the role of technology will be examined in the context of witnesses, improved access and speed. While the service will be predominantly digital, paper-based alternatives will remain available for those without internet access.  

Justice Minister, Alex Chalk MP, said: “The consultation comes just over a year after the OPG launched a new digital service called ‘Use a lasting power of attorney’. As the service allows attorneys to securely share details of their LPA with organisations online, it means they can quickly take action on their loved one’s behalf”.

Nick Goodwin, Public Guardian for England and Wales, welcomed the news and said: “More people are taking the vital step to plan for the future by applying for lasting powers of attorney, and we want to make sure that it is as safe and simple as possible to do so.

“This consultation puts forward proposals which will allow us to make the service fit for the modern world – one that can be accessed online, and which grants OPG the power to conduct thorough checks to protect against fraud while making it easier for people to raise concerns”.

Chartered Institute of Legal Executives (CILEX) chair, Professor Chris Bones also welcomed the proposed reforms, “especially at a time where there are many vulnerable individuals seeking these services”.

He said: “The potential to speed up the process in looking at how technology can be used to make it more straightforward and minimise delays brings with it the potential to benefit many consumers out there in the market”.

He added he hoped the Ministry of Justice would “correct a longstanding anomaly” that allows only solicitors and notaries public to certify copies of LPAs, to extend the right to CILEX professionals. He said the move would support the “wider effort to simplify and streamline the process” and benefit clients.

In parallel with the consultation, the OPG will run workshops and conduct user research to gather evidence from, and hear the experiences of, a range of people and organisations.

Any substantial changes will require amendments to the Mental Capacity Act 2005.