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Power of Attorney Act
On 18 September, the new Powers of Attorney Act 2023 (PAA) slipped quietly onto the statute book, changing the current Lasting Power of Attorney (LPA) procedure.
The Act aims to make the procedure faster, easier, and more accessible, as well as provide safeguards to better protect against fraud and abuse by:
- implementing online identity checks for those applying for an LPA.
- digitising and simplifying the LPA process to reduce human error and improve processing time.
- widening the group of people who can raise objections.
- allowing chartered legal executives to certify copies of an LPA.
The new system has yet to go ‘live’ as the government says it’s undergoing extensive testing to ensure it’s simple, functional and – crucially – secure.
Digitisation
Although the new legislation enables the completion of an online LPA, the option to use the existing paper process remains. The government recognises that not everyone is confident using the Internet, including some of the most vulnerable people.
Digitisation aims to make access to LPAs easier and, hopefully, improves processing times. Indeed, the government says that once the donor has completed their LPA and all parties have signed and returned their respective parts, the Office of the Public Guardian (OPG) will register the document in less than eight weeks. And half of that time will be the statutory four-week waiting period – an important safeguard.
It’s also hoped that the new system will deal with errors more efficiently, with mistakes identified earlier and corrected online, rather than posting documents back and forth between the OPG and the applicant.
The changes have received a broad welcome among solicitors. But there’s also lingering frustration that the government has missed a golden opportunity to reinforce the expectations of certificate providers.
What is a certificate provider?
Your LPA certificate provider is an independent person who confirms that you:
- are making the LPA of your own free will, ie without duress; and
- understand the implications of what you are doing; and
- have the mental capacity to make an LPA.
Many practitioners believe that the PAA could have done more to support certificate providers, clarifying and reinforcing their responsibility for confirming the donor’s mental capacity. For example, the PAA could easily have introduced a statutory requirement for the certificate provider to:
- ask a number of questions of the donor, enabling them to safely form an opinion as to whether the donor has mental capacity; and
- record and preserve how they formed their opinion in case the issue is raised later.