Reforming the LPA system
Matthew Duncan explores the recent review of the LPA system by the UK Ministry of Justice, and efforts to modernize it.
For practitioners who struggled during the Covid-19 pandemic in dealing with preparing and registering Lasting Powers of Attorney (LPAs) for clients, a paper-based process requiring multiple signatures and witnesses, the announcement on 20th July 2021 of a review of the LPA system was widely welcomed.
The UK Ministry of Justice (MoJ) announced it would undertake a 12-week consultation of the current system for making LPAs. Crucially, the MoJ will explore the use of technology in the process of witnessing and submitting LPAs, to speed up the service, improve access and prevent more LPAs being rejected due to avoidable errors.
The LPA was introduced in 2007, replacing its predecessor the Enduring Power of Attorney. It was designed to provide more flexibility and greater protections. However, many found the process of completing the forms complex and confusing. The form is overlong and the fact the LPA must be signed in a specific order creates logistical difficulties, particularly when the donor and attorneys are not in the same place. The impact of these issues has increased over the last year because of Covid-19. The reliance on paper-based processes, such as physical signatures and in-person witnessing, combined with social distancing, has further complicated the LPA creation process for some people. 19% of LPAs submitted by members of the public contain errors and 6% of LPAs submitted by solicitors contain errors.
The 12-week consultation period aims to examine the entire process of creating and registering an LPA. The proposed changes will fundamentlaly alter and update the process with a shift to a predominately digital service.
The consultation will explore:
· How witnessing works, and whether remote witnessing or other safeguards are desirable.
· How to reduce the chance of an LPA being rejected due to avoidable errors.
· Whether the Office of the Public Guardian’s (OPG) remit should be expanded to have the legal authority to carry out further checks such as identification verification.
· How people can object to an LPA and the process itself, as well as when is the right time for an objection to be made.
· Whether a new urgent service is needed to ensure those who need an LPA granted quickly can get one.
· How solicitors access the service and the best way to facilitate this.
Any substantial changes will require amendments to the Mental Capacity Act 2005 (MCA).
The Consultation paper has set out seven proposals for modernising LPAs.
Proposal 1 considers the role and value of witnessing on LPAs. The existing requirement for someone to be physically present to witness the donor and attorney(s) sign and execute an LPA could be removed and replaced with new safeguards within the process that fulfil the same function. The MoJ examines how they can use technology to support remote witnessing or to replace the witness altogether. The level of safeguard provided by witnessing would be retained, or possibly improved, by making the safeguard more appropriate for digital channels.
Proposal 2 considers the role of applying to register an LPA and who can apply. In order to reduce the chance of an LPA being rejected by the OPG, LPAs could be digitally checked as they are being prepared and are sent for registration as soon as they are executed. Checks on the content of the LPA would be automated as far as possible, identifying any errors at a point when they can be easily corrected by the parties, and removing the risk of errors being found later, when the donor may have lost capacity.
Proposal 3 considers the OPG’s remit. The MoJ examine how to widen OPG’s remit to enable it to verify people’s identity and stop or delay an LPA’s registration if it has concerns about it. The OPG would not register an LPA that could not pass new checks unless directed to do so by the Court of Protection. Many of these checks would be automated which would increase efficiency and consistency.
Proposal 4 considers how people can object to the registration of an LPA. The MoJ wants to simplify the current process so people can more easily understand where to send objections and how to do so. Solicitors have told the MoJ that having people to notify serves little value and now that it is no longer mandatory, they do not recommend including them.
In the new service, the MoJ wishes to ensure that the donor is protected against fraud and abuse by providing a clearer and more streamlined process to allow all those with legitimate concerns to raise an objection to the registration of an LPA.
Proposal 5 considers when people can object to the registration of an LPA. The MoJ’s preference is to allow people to object to an LPA from the time the donor starts creating it to the point it is registered. They would also like to shorten the time between an LPA being sent for registration and it being placed onto the register.
The MoJ’s research demonstrates that people see value in the ability for individuals outside the process of creating the LPA to raise concerns about it and they believe it is important that third parties, especially those with statutory safeguarding roles, continue to have the ability to raise concerns before an LPA is registered. However, shortening the period for objection after registration, while extending it in parallel with creation opens up new opportunities for these groups to lodge an objection at the earliest possible point and still have it fully considered.
Proposal 6 considers the speed of the LPA service and whether a dedicated faster service should be introduced for people who urgently need an LPA. The OPG currently offers a single service to all donors and does not prioritise its processing of LPAs based upon the donor’s circumstances or severity of need. The waiting period applies even when an LPA is needed urgently, for instance, when the donor could lose mental capacity before the LPA is returned. The MoJ’s does not favour the introduction of a dedicated service, as they do not believe it’s possible to create a faster service with a high enough level of safeguards that is not also overly complex. This is disappointing as I would like to think that it is possible to create a dedicated faster service in the right circumstances and I hope that practitioners will engage in the consultation period to encourage this.
Proposal 7 considers solicitors’ access to the service. Under the MCA, there is no special provision for solicitors or requirements on them to do anything different to other people who send in LPAs. LPAs received from legal firms are treated in the same way as those from members of the public.
One suggestion is to provide a service that effectively meets the needs of solicitors and is integrated into their existing document management systems. The MoJ intention would be to create a GOV.UK service which solicitors access via a ‘solicitor portal’. I am sure most solicitors who are now familiar with the HMCTS portal for probate applications would welcome this development.
Although still subject to consultation at this stage, it is hoped these measures will make it easier and faster for people to put LPAs in place, and bring the registration process into the digital age. Any reforms, however, are likely to take considerable time to be implemented. I would urge practitioners to engage in the consultation process which ends on the 13th October.
Matthew Duncan is a partner at Druces druces.com