Digital lasting powers of attorney may be on the way

The Government is currently debating the Powers of Attorney Bill, a new law which aims to modernise the process for registering and obtaining certificates for lasting powers of attorney.

Lasting powers of attorney explained

A lasting power of attorney (LPA) is a pre-emptive legal arrangement to give someone you trust the authority to make decisions or act on your behalf (making them an attorney) should you suffer a physical or mental condition such as a stroke, dementia, or Alzheimer’s Disease, which removes your ability to act for yourself. There are two types of LPA: one that covers health and welfare decisions – and one that covers financial and property decisions.

Individuals who lose capacity and do not have a valid LPA in place may have their matters decided upon by the Court of Protection.

What to expect from the Powers of Attorney Bill

Currently, the process of making lasting powers of attorney requires paper documents to be signed and sent to the Office of the Public Guardian for registration. Once registered, the certificate is a physical document to be produced when required.

The new bill proposes to make the entire process available to be completed electronically, with a digital certificate as the end result. It is hoped that this will speed up the process of applications, for which there is currently a significant backlog. Additionally, when attorneys make use of the LPA certificate during the course of their duties, the ability to produce it electronically rather than carry a physical document should provide additional convenience and reduced risk of loss.

The bill will also introduce new requirements for verifying identity, which aim to better protect donors from fraud and abuse. If someone objects to the registration, the mechanism for them to do so is also promised to be streamlined.

Is the Powers of Attorney Bill a good thing?

The main concerns among lawyers regarding LPA processes becoming digital have been in relation to fraud and undue influence.

The issue of fraud may be resolved by the new ID verification system, which should make it more difficult for someone to act fraudulently. However, it is not yet clear how effective the system will be at verifying the authenticity of documents.

As for undue influence, it is already a strict requirement that the donor must have a full understanding of the arrangement they are putting in place and its implications in order for an LPA to be valid and that they are not coerced or otherwise ‘tricked’ into signing the agreement.

There is some concern that the new bill could lead to situations where a donor is more easily deceived or misunderstands the implications of creating LPAs due to the information appearing on screens instead of on paper and may sign their LPA without a full understanding of what it will mean. It remains crucial to seek legal advice ahead of creating lasting powers of attorney.

What happens next?

The bill has been through two readings in Parliament and is to be examined by Committee, where the opinions of experts will be considered. Following this, it will be submitted for a third parliamentary reading.

After approval by Parliament, the bill must then also pass readings in the House of Lords before being submitted for Royal assent.

Please note that this information is for general guidance only and should not substitute professional legal advice. If you have specific concerns, we recommend consulting one of our legal experts.