The Law Society has attacked plans by the Ministry of Justice (MoJ) and Office of the Public Guardian (OPG) which could replace witnessing of lasting powers of attorney (LPAs) with electronic signatures.
The society said “no country in the world” had a system of digital powers of attorney where there were no witnesses.
“There is no evidence that donors will be safeguarded by the proposal against abuse at creation if there is no one who sees the donor sign.”
The society said the “historical reason” why witnesses were required for important documents that granted powers to others was to prevent fraud.
“If no one sees the donor sign there is no safeguard − it is very easy to obtain identity information in a person’s home.”
The society went on: “There is insufficient detail in this consultation to be confident that any replacement system will be secure and reliable. Safeguarding should never be a tick-box exercise.”
It put forward its own plans for remote witnessing of LPAs, in which the certificate provider discusses the power with the donor during a video call and then watches the donor execute the LPA before completing the certificate and acting as a witness.
The Law Society also opposed making the planned ‘solicitor portal’ for digital applications compulsory for law firms.
“It is incongruous to propose that solicitors may be compelled to use the digital service and at the same time assert that the paper system will be retained for those who cannot or do not want to use a digital service.
“Solicitors are obliged by their professional conduct rules to adapt their service to meet their clients’ needs and wishes.”
The government’s proposals on witnessing and the portal were part of a package of measures launched by the MoJ and OPG in July to streamline and digitise the powers of attorney process, cutting the registration time from 40 to 14 days.
Along with the replacement of witnessing by an “advanced or qualified electronic signature equivalent”, it was proposed that only the donor should register the LPA, immediately after it was executed, and all objections would go to the OPG and not the Court of Protection.
I Stephanie Boyce, president of the Law Society, said: “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.
“The consultation does not explain how the new proposals will impact on paper channels for LPAs.
“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.”
In its response, CILEX backed the use of qualified electronic signatures as not just in the interests of consumers in general, but for the clients of CILEX lawyers in particular, given it would remedy the longstanding anomaly preventing CILEX Lawyers from certifying copies of LPAs – at least for those who access legal services digitally.
It said this needed to be removed for paper copies as well.
But CILE too said modernisation “needed to remain sensitive to the vulnerabilities of an older client demographic and to ensure that the ability to safeguard against abuse, fraud and undue influence is not hindered as a result of the overhaul”.
Professor Chris Bones, chair of CILEX, added: “Government efforts to modernise the LPA system, using digital systems and solutions, are an important step that will bring the process into the modern age.”