The use and potential abuse of LPAs have been the subject of controversial discussion in private client law and wealth management for some time. The pandemic – and how it disrupted normal business life – has also increased the need to bring LPAs to a more digital world.
The UK government intends to revise the use of the permanent power of attorney and make the process more digital. Power is an issue that has flared up in recent years amid concerns about the potential for abuse of LPA, as well as how the system works amid the pandemic.
The Justice Department launched a 12-week consultation yesterday to look into the entire LPA process. The government wants to strengthen the powers of the public guardian’s office to prevent fraud and abuse and introduce a primarily digital service, the ministry said in a statement yesterday.
“The number of registered permanent powers of attorney (LPA) has risen dramatically to more than five million in recent years, but the process of creating a power of attorney has preserved many paper-based features that are over 30 years old,” it said.
The consultation will examine how technology can be used to reform the testimony process, improve access and speed up service.
“A permanent power of attorney offers millions of people the comfort and security of their old age provision. These changes will make the service faster, more accessible and even safer from fraud, ”said Attorney General Alex Chalk MP.
The consultation comes a little over a year after the OPG launched a new digital service called “Use a Permanent Power of Attorney”.
The following areas are examined in the consultation:
– How witnessing works and whether remote witnesses or other protective measures are desirable;
– How to reduce the likelihood of an LPA being rejected due to avoidable errors;
– whether the scope of duties of the OPG should be extended to include the legal authority to carry out further controls such as identity verification;
– How people can object to an LPA and the process itself and when is the right time to object;
– Whether a new urgent service is needed to ensure that those in need of an LPA can get one quickly; and
– How lawyers access the service and how best to make it possible.
The government said any material change would require an amendment to the Mental Capacity Act 2005, which introduced the current system.
Tim Snaith, a partner in the private clients team at Winckworth Sherwood Law Firm, said, “The permanent authority system introduced in 2007 was a significant change from the old permanent authority system.”
“It brought a new approach and a much more collaborative way of working with people suffering from illnesses that cause diminution or loss of mental capacity, and it was undoubtedly a change for the better. However, the subject was (and remains) complex. Each form is over 20 pages long, requires more than six signatures (sometimes this can be more than 10), and must be signed in a strict order. Permanent power of attorney must also be registered with the official guardian (OPG) before they come into force, ”he continued.
“Even if no mistakes were made on the forms, the waiting time before registration is at least four weeks in order to raise any objections and, due to delays at the OPG, it usually takes about 12 weeks before the documents can be used. “Said Snaith.
“The world has changed a lot technologically since 2007 and this could be a solution to the above problems. However, this has to be weighed against the possibility of abuse. One of the reasons the stricter LPA forms were introduced in 2007 and registration became mandatory was to prevent abuse, but this made it difficult to establish the authority. It’s a balance and the advice will certainly shed a bright light on the risk of abuse and how this could be managed if the process is simplified, ”added Snaith.
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