Powers of Attorney Act 2023
On 18 September 2023 the Powers of Attorney Act 2023 was passed. This Act introduces sweeping changes to the current ways that Lasting Powers of Attorney are made and registered. The Act itself is extremely brief, with only three short sections, however the schedule contains all the amendments to the Mental Capacity Act 2005.
Easily overlooked are the amendments in section 2 which now allow Chartered Legal Executors to certify Powers of Attorney under section 3 of the Powers of Attorney Act 1971.
The main changes to making and registering Lasting Powers of Attorney can be summarised as follows:
- Electronic LPA’s
- ID checks
- Only the Donor of an LPA can apply to register it
- Notification of nominated persons
Types of Lasting Powers of Attorney
Lasting Powers of Attorney will still come in two types: Property and Financial Affairs and Health and Welfare. Both enable the donor to select one or more people to act as Attorneys and/or replacement Attorneys to be able to make decisions on their behalf even if they have lost mental capacity to be able to make their own decision. The new Act does not change that.
Regulations are to be brought in allow for parts of the Lasting Powers of Attorney to be signed electronically, subject to certain safeguards. According to the Ministry of Justice this will “make the system quicker, easier to access and more secure for the thousands of people who make and rely on Lasting Powers of Attorney every year”.
Checks on the identity of those applying for a Lasting Power of Attorney will also be made and the Office of the Public Guardian will develop these amendments which will be subject to “extensive testing to ensure the process is simple to use, works as intended and is secure.”
Applications to register Lasting Powers of Attorney will also only be possible by the donor of the LPA, as opposed to the current system whereby Attorneys can apply to register an LPA.
“It is hoped that the digitisation of preparing Lasting Powers of Attorney will speed up the registration time by picking up errors earlier and allowing them to be fixed online rather than having to wait for documents to posted back and forth between the applicant and the Office of the Public Guardian”.
Paper vs for Power of Attorney
The Ministry of Justice have also promised that “an improved paper process will also be introduced for those unable to use the internet”.
Whilst the move to simplify and speed up the process is very welcome, people are already able to prepare their LPA’s online through the Office of the Public Guardian website. The main drawbacks of that system, however, are that no advice is provided, and it is easy for applicants to have a document that does not really meet their needs, or in some cases does not work at all!
Advice regarding your particular circumstances should still be obtained to ensure that the Lasting Power of Attorney, which can be an incredibly useful and powerful document, meets your needs.
In the meantime, the current paper-based system is still in operation, with “the Office of the Public Guardian registering around 19,000 more Lasting Powers of Attorney a month than before the Covid pandemic”.
The other change will be in relation to the current notification requirement. At present, donors can identify one or more individuals that they would like to notify that the Lasting Power of Attorney is being registered with the Office of the Public Guardian. The new change will mean that the notices are sent out by the Office of the Public Guardian, to ensure they are actually sent and are not overlooked.
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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.