LPAsA Summary of the Government’s Response to the Modernising Lasting Powers of Attorney Consultation

In July 2021 a consultation was launched to examine the process of creating and registering Lasting Powers of Attorney (LPAs) to access areas of modernisation. The government’s response to the consultation was published on the 19 May 2022 and sets out responses to each proposal based on the replies to the consultation. In this week’s article we will cover what the government’s responses to each proposal are.

For a background on the consultation and further information of the initial proposals, please see our previous article.

Role of Witnesses

The OPG made a number of suggestions to amend the role of the witness:

1. Remove the need for signatures to be witnessed and introduce no alternative. This would make the process easier and reduce the number of errors. It may however put donors at risk if it does provide a safeguard and reduce the perceived legal weight of creating an LPA and make donors and attorneys less likely to consider its legal significance.
2. Allow for signatures to be witnessed remotely. This would remove physical issues whilst retaining the safeguards of a witness but there is a risk that some users may find digital witnessing more complex and it could be open to some manipulation.
3. Replace witnessing with a new safeguard that provides a similar function that would provide the OPG with objective evidence that an LPA has been created validly. The safeguard provided by witnessing should be retained, or improved, and be appropriate for digital channels. Some technological options are suggested by the consultation.

The response to the proposal to remove witnessing and introduce remote witnesses were both largely negative. The response to the proposal to replace witnessing with a digital safeguard was mixed. The government will continue to investigate the possibility of using technology to replace witnessing with a digital function.

A number of responses highlighted that the requirement to witness the attorney’s signature is unique to LPAs and does not exist for other forms of deed. Although this was not a question in the consultation itself, the number of responses highlighting this has led to the government stating that they will consider whether retaining the requirement of the attorney’s signature being witnessed provides a safeguard to the LPA.

There was also confusion on the exact role of a witness and conflating this with the role of the certificate provider. Therefore the government provided a number of responses suggested combining the role of the certificate provider and witness and require that the certificate provider be present at the donor’s signing. The government will investigate that suggestion.

Due to the confusion on the role of the certificate provider, the government will provide greater clarity on their roll. The government resisted suggestions that the certificate provider should be a professional on the basis that access to professionals may be a cost barrier and that non-professional certificate providers may know the donor better than a professional and be in a better position to spot abuse or pressure.

Finally, the government will ensure that LPAs continue to be, or be treated as, a deed even if the witnessing requirements are changed.

Role of Application

The OPG were seeking to reduce and limit the number of errors made in an LPA before it is sent for registration and implement these in a new service to increase speed and simplicity of registrations. They had suggested two different approaches:

1. Execution of the LPA starts the registration process. A new requirement will be included that an LPA is sent for registration as soon as it is executed.
2. Retain the current ability to delay registration but a new requirement for the OPG to store digital copies of unregistered LPAs would be added in.

Responses were mainly positive to the removal of the ability to delay registration on the basis that this would aid in detection of errors and resolving them early. There were however a not insignificant number of people who were either negative or gave compelling reasons to keep the ability to choose to delay. Concerns on donors paying for an LPA that might never be used were not a sufficient argument for the government however as they consider LPAs similar to an insurance policy that is paid for but with the hope that it is never needed.

The government will therefore continue to investigate both of their proposed approaches of immediate execution and a delayed registration.

OPG Remit

There were two different suggested approaches that could be taken to modify OPG’s functions:

1. Conditional registration. The OPG’s remit would be widened so that an LPA could be registered, or rejected, depending upon the outcome of a new set of prescribed checks during the creation and registration process.
2. Discretionary registration. OPG’s remit would be widened so that an LPA could be registered, or rejected, depending on whether the OPG judged that the LPA was within a safe risk threshold.

Both of the government’s proposed responses to changing the OPG’s remit involved some form of ID checks. Overall, there was support for ID checks to be included as part of the LPA creation process. The government will consider whether checks on the attorney’s identity are necessary and appropriate and will seek to verify the identity of both the donor and certificate provider in a modernised service. They will consider a wide range of identification options to ensure access for everyone.

The government will be proceeding with developing a system of conditional checks rather than discretionary checks that the OPG will be required to make on the basis that these will provide the most consistent level of protection and provide the greatest clarity.

The consultation raised the possibility of introducing suitability checks on attorneys but the government will not be introducing these.

How to Object

The consultation made the following suggestions on how objections could be raised:

1. The OPG receives all objections from all parties. The OPG would then review and investigate objections.
2. The OPG only receives factual objections. Prescribed objections would go to the Court of Protection and the OPG would not review or investigate these unless directed to by the Court.

Taking all views into account, the government will pursue the approach that the OPG receives all objections. They will also proceed with permitting objections to the registration from an LPA from anyone rather than only from certain parties. Powers will also be given to the OPG so that they can refer cases directly to the Court of Protection where necessary.

When to Object

The consultation suggested three different changes that could be made to time limits on objections.

1. Objections could be raised from the point the donor starts creating their LPA until it is sent for registration.
2. The statutory waiting period could be retained but reduced in length.
3. The statutory waiting period could be removed entirely provided that other safeguards and checks create a high level of protection.

The government received positive responses to their suggestion of allowing objections to be raised during the creation process rather than only allowing objections during the registration process and they will be investigating a method for this. Some respondents suggested introducing a pre-creation objection process which could operate similarly to the caveat system of probate by raising a concern with the OPG before a donor starts creating an LPA by providing details such their name and address. The government will consider this type of a system and consider what third parties could be allowed to object.

The government will not be proceeding with the proposal to remove the statutory waiting period. Respondents to the consultation emphasised that it was an important safeguard for the donor and a cooling off period. Support was found for reducing the statutory waiting period and with the other proposed changes it may be possible to reduce the waiting period without compromising safeguarding the donor. The government will continue to investigate what the appropriate length of the statutory waiting period should be in a future service.

Some respondents suggested reintroducing mandatory persons to notify but the government will not reintroduce these on the grounds that it prevented some people from creating LPAs.

Speed of Service

The government will not be proceeding with the proposed fast track service. Respondents did not support this generally and expressed concerns that this could add delays to the standard route. Evidence collected in the consultation suggested 25% of donors had an urgent need to register the LPA immediately and there were some suggestions that this may be as high as 38%. This many would likely undermine the purpose of an urgent service. There would also be a need to remove safeguards for an urgent service which could leave it open to potential abuse. Evidence for an urgent service would also need to be manually checked by OPG staff to confirm it met eligibility and the indication of volumes suggested this could not be completed without addition OPG resources which would lead to an increase in their fees. The time to gather evidence to pass any eligibility criteria may also be costly and time consuming and mean that the fast track service is not worthwhile.

Solicitor Access to the Service

The government will be proceeding with their proposal to integrate a digital LPA channel with document and case management systems. It was highlighted that a number of respondents were concerned that these proposals were focused on solicitors and clarified that any integrated digital systems would not be provided only to solicitors and would be provided to other legal professionals such as will writers and estate planners and also to third sector organisations such as charities. They will also ensure that they have sufficient powers to mandated that legal professionals use the digital service in the future if it be required.