Could Lasting Powers of Attorney Go Digital?
A more straightforward digital system to set up a Lasting Power of Attorney (LPA) could come into play, but experts say that it is vital that sufficient safeguards are in place to protect elderly and vulnerable people from abuse. In this article, we look at how the system might work, and the concerns for potential abuse of a digital process for setting up Lasting Power of Attorney.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document which allows a person to appoint someone to manage their affairs should they lose the capacity to do so themselves. Normally, this will be a family member or close friend.
Why introduce a digital system?
An LPA is an essential part of planning for the future and in recent years registrations have surged. However, creating and registering an LPA still involves a significant amount of paperwork, based on a system created more than 30 years ago, although substantially updated in 2005-2007.
The Government is looking to both modernise and simplify the process by introducing a digital system. The new system will introduce a fast-track process to grant LPAs to people who need them urgently, for example, if a person’s health is deteriorating quickly. At present, it takes around 12 weeks to register an LPA, which is challenging for those with a relative who has suffered a sudden change in their health or mental capacity.
What are the difficulties with introducing a digital system?
Both legal and financial experts have welcomed the proposed changes to the process for registering an LPA but have pointed out some challenges. Firstly, a digital system without properly considered safeguards could mean that elderly or vulnerable people are targeted for abuse or coercion.
Justice Minister Alex Chalke says:
‘An LPA is not just a piece of paper. It is a legal agreement that allows a person to set out their wishes and preferences and have peace of mind that these will be followed. The protections that exist in the LPA are based on decades, if not centuries, of tradition and legal case law. They’re based on known and trusted paper-based social conventions, such as signing and witnessing’
Furthermore, although many elderly people have adopted technology, there is still a large proportion who do not have access to a computer or smartphone, or who are reliant on others helping them access online materials or websites.
The current system provides some protection as it requires one person to act as an independent witness present at the time of signing. Someone must also act as Certificate Provider, and it is this person who checks that the donor of the power is not being placed under any undue influence or being coerced. The Certificate Provider can also act as witness, however, if they are present at the same time, the person who can act as Certificate Provider is far more limited than the person who can act as a witness.
How will the new system work?
The Government says that it would like to have LPAs digitally checked at the time they are made and sent for registration as soon as they are executed. A spokesperson said:
‘Our preferred option is to replace the witness with new safeguards that perform the same function.’
There are also plans to allow a person to make an objection to any LPA from the time the donor begins the process, right up until it is successfully registered.
‘Our preferred option is not to introduce a dedicated service, as we do not believe it’s possible to create a faster service with a high enough level of safeguards that is not also overly complex.’
Please note the contents of this article are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.