The new Digital Lasting Power of Attorney – easier (for some) and safer?

The Existing System

The Powers of Attorney Act 2023 is due to introduce a digital Lasting Power of Attorney (“LPA”) in Autumn 2024. The current LPA process has been ripe for an update for some time for several reasons:

• Considerable delays with registrations at the Office of the Public Guardian (“OPG”)
• A significant proportion of LPA registrations are rejected because documents aren’t executed correctly
• There are no existing safeguard checks on donors
• Applications are made using large amounts of paper which are not fit for purpose in the modern world.

Proposed Changes

The fine details of the new registration process are yet to be published but we anticipate that these will be introduced soon for implementation and that they will likely include the following:

• A fluid process so that different parties can complete their sections either online or on paper
• In the ongoing battle against identity fraud, the donor and the certificate provider will need to verify their identity when applying to register the LPA. This will not apply to attorneys
• The OPG will deal directly with any objections raised to the registration of the LPA rather than making a costly and time-consuming referral to the Court of Protection
• The application process will be in three stages:

1. Form 1 is completed by the donor online. The donor provides their ID and pays the registration fee. A code is sent to the certificate provider in a text message to effect the witnessing of the donor’s application
2. Form 2 is emailed to the certificate provider. They provide their ID, review Form 1, and complete Form 2. If they do not want to act, they can say so at this stage. Given existing confusion around the role of the certificate provider, more guidance will now be given to providers on their duties to the donor
3. Form 3 is emailed to the attorneys. They then have the option to sign online or on paper

The aim of the new process is to simplify – and flush out errors in – the application stage so that the application to register can only be made when everything has been prepared correctly.

Ongoing Concerns

The shift to an online system may be a concern to people working with – or caring for – vulnerable people who may not be able to manage an online application process without assistance. The risks of undue influence and coercion are clear.

The new system is currently being tested. It remains to be seen how it will provide sufficient protection for people entering into such a significant and valuable document.

In the meantime, the safest way to protect a vulnerable person in making an LPA will continue to be speaking with a professional for advice. For more information and advice on drawing up an LPA contact us on 020 8290 0440.