The vast majority of solicitors want to retain the rule that donors must physically sign lasting powers of attorney (LPAs) rather than move to electronic signatures, a survey has found.
This contrasts with the government’s declared aim of making the LPA signing and registration process fully electronic.
According to the 410 solicitors polled by the Office of the Public Guardian (OPG), fraud prevention was a key reason given by the 92% in favour of maintaining wet signatures.
“There was also uncertainty about what wet signatures could be replaced with in a more digital service, whilst retaining a level of safeguarding for the client,” the OPG said.
Some solicitors suggested that, as long as the donor still provided a wet signature, other ‘actors’ involved in the LPA would not – the OPG said it has marked this issue for future research.
While in some cases witnesses added no value, the survey found, where they did, it was to prevent fraud, act as a safeguard and to give the process some gravitas and formality.
“Having witnesses also introduces some friction to the process, so that the donor has time to consider the importance of the document that they’re creating,” the OPG said.
“We’ve heard some similar themes from the citizens we’ve spoken to, and it’s an area that we’ve marked for future research.”
The vast majority of respondents said they had never been concerned about the authenticity of a signature on an LPA or the identity of one of an actor on an LPA, mostly because they were done in the solicitor’s presence.
“Where it was reported that there were concerns, usually a fresh LPA was produced and signed in the presence of the solicitor to ensure the document was genuine. Around 16% of respondents said that they never check a signature on the LPA against an exemplar.”
Most solicitors said they would request a capacity assessment before making an LPA, if they felt one was needed, and would refuse to make an LPA for a client if appropriate, with lack of capacity, lack of understanding of the LPA and concerns around coercion being the most cited.
Though the majority of solicitors said they checked the donor’s ID, only 11% checked the attorneys’ ID, and even fewer check the ID of other actors on the LPA.
“This reflects the fact that the donor is the client in this situation. It may also be because in many cases, solicitors are acting as the certificate provider and colleagues as witnesses.” Indeed, 90% said they always or usually took the role of certificate provider
A little over three-quarters of solicitors said they would be willing to certify the identity of the donor, but only a third would be for the attorney.
The survey identified a disconnect between what solicitors and clients said was the reason for making LPAs: while the majority of solicitors said it was an advance move simply to prepare for the future, OPG research among consumers found that more people were making LPAs as a result of an acute need, such as a dementia diagnosis.