Protect safeguards when making LPAs digital

LPAs are used when a person’s mental capacity is diminished, granting powers to make life choices, such as where to live, as well as financial decisions.

The ministry’s proposals, including allowing electronic signatures and [witnesses?], were set out in its consultation ‘Modernising Lasting Powers of Attorney’, which closed this week.

Responding this week, CILEX said it supported the introduction of qualified electronic signatures, noting this would resolve an anomaly preventing CILEX Lawyers from certifying copies of LPAs, as well as helping consumers. However, it called for the Powers of Attorney Act 1971 to be amended to allow CILEX Lawyers to certify copes of original documentation as well. It called for any modernisation to be sensitive to the vulnerabilities of an older demographic and to retain safeguards against abuse, fraud and undue influence.

The Law Society, in its official response this week, expressed support for making the LPA process digital but also emphasised the need to protect safeguards such as the requirement for an independent certificate provider to form an opinion that the person knows what they’re signing, and the ability post-registration for anyone to raise a concern and for the Court of Protection to order the LPA be de-registered.

Law Society president I Stephanie Boyce said: ‘To give this some context, the consequence of an attorney making a poor decision could result in the loss of all their assets, being put into a care home against their current or past wishes or even their premature death.

‘We are still faced with significant ambiguities. For example, it is unclear whether the proposal is for the LPA to remain a deed; it is unclear whether the proposal is for the role of the witness to be merged with the role of the certificate provider; and it is unclear exactly how the actors to the LPA will evidence that they executed the LPA. These questions must be cleared up.

‘Our overarching concern is the consultation fails to address how the proposals will work for those who cannot access a digital service; nor does it address the need to ensure that the role of the certificate provider works within a digital process as was intended when the Mental Capacity Act 2005 was passed.’

Boyce highlighted that many people in the UK do not have access to the internet, citing 2018 Office for National Statistics data that five million people over the age of 55 were not online.

‘The consultation does not explain how the new proposals will impact on paper channels for LPAs,’ she said.

‘Many people – such as those in care homes or people with learning difficulties – will need to make an LPA via a paper process and the digital service which currently exists is complicated and hard to use, even for the digitally literate.’