Modernisation of Lasting Powers of Attorney

08/09/2022

Last year, the Ministry of Justice (“MoJ”) carried out a consultation exercise entitled “Modernising Lasting Powers of Attorney”[1]. The subject matter was obvious from the title, and the consultation document revealed that the objectives were to increase safeguards, to improve the process of making and registering a lasting power of attorney (“LPA”), and to make the system sustainable for the Office of the Public Guardian (“OPG”) and affordable for members of society[2].

In short: safer, easier, and affordable.

Having taken time to consider matters following the consultation, the government’s response has now come in a paper dated May 2022[3], and it can be seen that, whilst much of what was favoured prior to the consultation remains the intended way forward or at least is still ‘on the table’, there are a number of points on which the government has determined that further consideration is needed as a result of the responses which it received.

The consultation considered seven issues and put forward seven proposals. In summary, the issues considered, the initial proposals, and the government’s position following the consultation are as follows:

(1)   Witnessing: First, the consultation considered the current requirement for there to be a witness to the signing of an LPA (as distinct from the additional requirement for a person to certify that the donor understands and freely consents to the creation of the LPA). It concluded there was some, albeit limited, value in the witnessing requirement which should be retained within the LPA creation process. However, it found there was presently confusion around the role of the requirement and there could be difficulty in complying with it. As such, while it was considered too risky to allow a person to witness the signing of an LPA remotely, it was proposed to replace the need for a witness with a requirement for other evidence as to the signing of the LPA (potentially through a form of electronic signature which securely records additional data about the signature such as internet address, timestamp and location).

The government’s response now identifies that there is concern amongst consultees about all of the potential changes considered. Whilst the government still proposes to investigate an alternative form of authenticating the signature of the LPA, to an extent it is going back to the drawing board as to quite how this will work; and in particular is to consider whether an attorney’s signature ought to need to be witnessed, and whether the certificate provider could also serve as witness to the donor’s signature (although likely not that of the attorney). An interesting point which also emerged from the consultation process was further evidence of confusion between the role of a witness, a certificate provider and a capacity assessor; and further assistance for certificate providers is to be considered.

(2)   Delay in Registration: Second, the consultation looked at the current allowance for delay in applying to the OPG to register an executed LPA until it is required for use. It recognised that as an LPA is checked for compliance with legislative requirements upon such application, if errors then come to light, but there has been delay in applying, it may not be possible to rectify those errors so as to allow registration of the LPA where the donor has lost capacity in the meantime. However, the evidence suggested that relatively few people delayed in registering an LPA and it was not obviously apparent that there were good reasons for doing so. As such, it was proposed that LPAs should be automatically checked for legislative compliance as they are being made and sent for registration as soon as they are executed.

However, in the light of a mixed response from consultees, the government has now indicated that it will continue to investigate both this option and the alternative option of permitting registration to be delayed for a defined time period, during which the OPG would store digitally-created LPAs and after which they would be deleted.

(3)   The OPG’s Role in Registration: Third, the consultation considered the role of the OPG in relation to the registration of LPAs, with its relatively limited powers to check LPAs comply with legislative requirements and prevent their registration where they do not (otherwise largely relying on other parties to raise concerns about LPAs). Although it was not preferred to leave too much discretion to the OPG, it was proposed to widen and clarify its powers so that it would not register an LPA until certain prescribed checks are met – including verifying the identity of parties to the LPA – and would reject LPAs that cannot meet them.

Following the consultation, the government has indicated that it intends to develop a system of conditional checks on the registration of LPAs, without giving the OPG discretion over this process. These checks are intended to include donor and certificate provider identity verification, with consideration of options to provide for the accessibility of the process in circumstances where there might be difficulties with online verification. The question of whether identity checks for attorneys should be required within the process of making an LPA is to be considered further, but the idea of suitability checks on attorneys has been rejected.

(4)   Procedure for Objections: Fourth, the consultation looked at the current procedure for objecting to an LPA, and how it differs depending on the nature of the objection and the identity of the objector, including as to such important points as whether the objection is made or notified to the OPG and/or the Court of Protection (“CoP”). It concluded that the current procedure is relatively complex and lacks clarity, including as to some objections which are not fully dealt with in the legislation. As such, it was preferred to remove such procedural differences, and proposed that anyone be allowed to raise an objection and all objections be sent to the OPG to review and investigate in the first instance.

This remains the proposed approach following the consultation, with clarification that the OPG has power to refer cases to the CoP where necessary.

(5)   Timing of Objections: Fifth, the consultation considered the point at which and the length of time for which objections can be made against an LPA. It concluded that many, although not all, users of the process perceived the current waiting period which allows for objections during the registration procedure as a processing time delay rather than an intended safeguard, and some had concerns over the value of the objections being made at that stage in the process. As such, it was proposed to allow people to send the OPG objections to an LPA from the time at which the donor starts creating it until the point of registration, to reduce or perhaps remove the waiting period and/or to deal with objections after registration.

After consultation, the government has indicated that it will retain the statutory waiting period, but will investigate the appropriate length of this period having regard to other changes to how objections are made, alongside investigating permitting objections during the process of creating LPAs. The government is also going to look into the feasibility of permitting some pre-emptive objections to be raised prior to the LPA process being started.

(6)   Speed and Urgency: Sixth, the consultation looked at the speed of the process for creating and registering an LPA and whether a faster service should be provided for people who need an LPA urgently. It concluded that the foregoing proposals would produce a significant reduction in the time to register an LPA generally, and that it would not be possible to create a faster service with a sufficient level of safeguards that is not also overly complex. As such, it was proposed not to introduce a distinct urgent service in this regard.

This position remains unchanged after consultation.

(7)   Digital Systems: Seventh, the consultation considered how to enable solicitors (and others) to access new digital systems for the creation and registration of LPAs and how to ensure they use them where possible. It was proposed to do this by integrating the new digital systems with solicitors’ existing document management systems; although, if it was to appear that this on its own would not produce the necessary take up of the digital systems, there may be a need to require solicitors to use them in part or in whole.

After consultation, the proposal remains to seek to integrate the digital channel with document and case management systems, but with legislative provision to allow the government to mandate use of the digital channel by regulated legal professionals should take-up not otherwise be sufficient to achieve the government’s objective of driving efficiency and thus allowing the OPG to re-allocate resources.

Practitioners who assist clients to make LPAs and who assist donees of such powers to use them correctly will no doubt have their own views on where improvements are most strongly required, and what they should – and should not – be, and may well have responded to the consultation or contributed to collective responses by interested representative bodies. It is notable that both the Bar Council[4] and the Law Society[5] expressed concerns and queries about several of the proposals in their responses to the consultation.

The focus of the consultation and potential changes is on the creation and registration of powers of attorney. Disputes will often arise and make their way to counsel later (and sometimes much later), when the use of the power has become contentious, or perhaps even when it has come to an end. However, many such disputes are likely still to have their roots in tensions which went unaddressed at the point when the LPA was first created, registered and brought into use.

Whatever form is taken by such reforms as are made, it should be remembered that there are a number of stages throughout the life of an LPA at which problems can arise, and thus can hopefully also be anticipated, addressed and avoided.

First, problems with an LPA can be identified and addressed at the outset. These might be exactly those issues that the consultation and potential changes intend to ensure are caught at the stage of the LPA being created and registered. An LPA may have been procured in questionable circumstances. The donor may already lack the capacity to make a relevant LPA. Things may (hopefully rarely) even be far from what they seem, with the LPA being the product of outright fraud.

Along with following the necessary steps to complete an LPA which is valid on its face, a practitioner should also be careful to ensure that proper safeguards are applied to provide reassurance that an LPA is made genuinely, freely, and backed by capacity and understanding, with an appropriate attorney. Anything less risks letting down the donor by bringing about an LPA which is invalid (or even a vehicle for exploitation), which fails to put in place suitable arrangements, or which is the subject of a contest which could have been avoided.

Second, attorneys should remember, and should be reminded where required, that an LPA will often need to operate as part of a holistic framework for the support of the donor. Attorneys for health and welfare and property and financial affairs may have to work in cooperation with each other (such as, most obviously, over deciding on and then funding living arrangements). An attorney may also need to work alongside a deputy, with local authorities, and with other sources of formal and informal support for the donor. All of this will also take place subject to the power of the OPG to intervene and, if necessary, subject to the supervisory oversight of the CoP. An attorney who is high-handed can create problems for a donor even whilst remaining entirely focused on the donor’s perceived best interests and acting within the powers granted by the LPA. Such an attorney should be encouraged to remember that, whilst the LPA exists for a reason, an avoidable tug of war will rarely serve the interests of the donor and is more than capable of provoking conflict and court action.

Third, of course, attorneys should ensure that the substance of their actions is consistent with their obligations, statutory and otherwise. An attorney with his or her ‘hand in the till’, or with a disregard for the donor’s welfare, is – of course – the nightmare scenario against which LPA safeguards need most jealously to guard, but lack of understanding or care as to what is required can too easily give rise to their own problems. An attorney who fails to keep records, ignores advice or forgets what his or her job is stores up problems for the future, whether by way of a challenge in court or, sadly, simply through poor outcomes for the donor.

With regard to the reforms proposed by the consultation, with further consideration by the government to come, it remains to be seen whether all or any of the proposals are implemented and precisely what changes are made to existing legislation, including the Mental Capacity Act 2005, as a result.

Oliver Mitchell & Michael Selway

Guildhall Chambers Court of Protection Team

 September 2022

The material contained in this article is provided for general information purposes only. It does not constitute legal or other professional advice. No responsibility is assumed by any member of chambers for its accuracy or currency, and reliance should not be placed upon it. Specific, personal legal advice should be obtained in relation to any case or matter. Any views expressed are those of the editor or named author.

[1] See https://consult.justice.gov.uk/opg/modernising-lasting-powers-of-attorney and https://www.gov.uk/government/consultations/modernising-lasting-powers-of-attorney as of 22 August 2022.

[2] Executive Summary, paragraph 13.

[3] Available on the MoJ and government consultation web pages, referred to above, as of 22 August 2022.

[4] See https://www.barcouncil.org.uk/uploads/assets/5787cd79-9127-4b8e-917e3551c67e5f19/Bar-Council-response-to-the-Ministry-of-Justice-consultation-paper-on-Modernising-Lasting-Powers-of-Attorney.pdf as of 22 August 2022.

[5] See https://www.lawsociety.org.uk/campaigns/consultation-responses/modernising-lasting-powers-of-attorney-law-society-response as of 22 August 2022.