Chalk: Reforms will make LPAs more secure from fraud
The Ministry of Justice (MoJ) and Office of the Public Guardian (OPG) have outlined plans to streamline and digitise lasting powers of attorney (LPAs) cutting the time needed for registration in most cases from 40 to 14 days.
The proposals under consultation [1] would end the need for LPAs to be witnessed in person, while requiring them to be sent for registration by the donor as soon as they are executed and introducing a ‘solicitor portal’ to encourage digital applications.
The MoJ said technology had advanced in the 14 years since LPAs replaced enduring powers of attorney, and many donors and attorneys described the paper-based LPA as “cumbersome, bureaucratic and complex”.
The OPG received 19m sheets of paper in the form of hard copy LPAs in 2019/20 and posted out a similar amount, creating an “ever-increasing need” for staff, equipment and storage.
On witnessing, the MoJ said that in 2019/20 around 15% or 140,000 of LPAs contained errors, with signing and witnessing responsible for a “significant number” of them.
Its preferred approach was to replace the existing requirement – that someone physically witness the donor and attorney signing and executing the LPA – with a digital alternative.
Donors and attorneys could mark their consent through an “advanced or qualified electronic signature equivalent”.
The MoJ said: “These technologies allow a donor or attorney to make a mark upon an electronic document within a one-time anti-tamper environment, and securely record additional evidence of the event such as internet address, device information, timestamp, location and identifiable information.
“These data points would be encrypted as part of the submitted LPA information, and serve as sufficient evidence to attest an agreement was made by the donor and attorney, without the need for an in-person witness.”
The MoJ said it wanted to end the current practice where, once an LPA has been created, donors and attorneys could delay sending it to the OPG for registration until required for use.
Instead, only the donor would be able to register the LPA, and they would do it immediately it was executed.
The OPG’s remit would be widened so that an LPA could be registered or rejected depending on “a new set of prescribed checks during the creation and registration process, including ID checks and potentially the ability to limit who can be an attorney on the basis of prior relevant convictions”.
The OPG would not register an LPA that could not pass these checks unless directed by the Court of Protection.
The MoJ proposed that all objections to LPAs would in future be sent only to the OPG, ending the involvement of the Court of Protection. The statutory ‘waiting period’ of four weeks, where objections can be made, would be reduced.
In terms of speed, the MoJ said the reforms aimed to cut the OPG’s current target time of 40 days for registering LPAs to two weeks. As a result, it did not support the introduction of a speeded-up procedure for urgent cases.
Solicitors would be encouraged to submit LPAs digitally through a ‘solicitor portal’ integrated into their existing document management systems.
Those still using paper forms would be directly linked to the gov.uk service, which could potentially include automated checks, instant submission to the OPG, and the ability to track the status of multiple LPAs. Use of the portal would not be compulsory, at least not initially.
Launching a three-month consultation, justice minister Alex Chalk said the reforms would make the service “quicker to use, easy to access and even more secure from fraud”.
Nick Goodwin, the Public Guardian, added: “This consultation puts forward proposals which will allow us to make the service fit for the modern world – one that can be accessed online, and which grants OPG the power to conduct thorough checks to protect against fraud while making it easier for people to raise concerns.”
Professor Chris Bones, chair of CILEX, welcomed the proposals, but said the “longstanding anomaly” in the Powers of Attorney Act 1971 that only solicitors and notaries public could certify copies of LPAs should also be reformed to allow CILEX Lawyers to do so too.