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18 October 2021
Issue: 7953 / Categories: Legal News , Wills & Probate , Court of Protection
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Protect safeguards when making LPAs digital

Lawyers have given a cautious welcome to Ministry of Justice proposals to digitalise lasting powers of attorney (LPAs)

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.’

MOVERS & SHAKERS

London Solicitors Litigation Association—John McElroy

London Solicitors Litigation Association—John McElroy

Fieldfisher partner appointed president as LSLA marks milestone year

Kingsley Napley—Kirsty Churm & Olivia Stiles

Kingsley Napley—Kirsty Churm & Olivia Stiles

Firm promotes two lawyers to partnership across employment and family

Foot Anstey—five promotions

Foot Anstey—five promotions

Firm promotes five lawyers to partnership across key growth areas

NEWS
Freezing orders in divorce proceedings can unexpectedly ensnare third parties and disrupt businesses. In NLJ this week, Lucy James of Trowers & Hamlins explains how these orders—dubbed a ‘nuclear weapon’—preserve assets but can extend far beyond spouses to companies and business partners 
A Court of Appeal ruling has clarified that ‘rent’ must be monetary—excluding tenants paid in labour from statutory protection. In this week's NLJ, James Naylor explains Garraway v Phillips, where a tenant worked two days a week instead of paying rent
Three men wrongly imprisoned for a combined 77 years have been released—yet received ‘not a penny’ in compensation, exposing deep flaws in the justice system. Writing in NLJ this week, Dr Jon Robins reports on Justin Plummer, Oliver Campbell and Peter Sullivan, whose convictions collapsed amid discredited forensics, ‘oppressive’ police interviews and unreliable ‘cell confessions’
A quiet month for employment cases still delivers key legal clarifications. In his latest Employment Law Brief for NLJ, Ian Smith reports that whistleblowing protection remains intact even where disclosures are partly self-serving, provided the worker reasonably believes they serve the ‘public interest’ 
Family law must shift from conflict-driven litigation to child-centred problem-solving, according to a major new report. Writing in NLJ this week, Caroline Bowden of Anthony Gold outlines findings showing overwhelming support for reform, with 92% agreeing lawyers owe duties to children as well as clients
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