Before the Enduring Powers of Attorney Act (EPA) was introduced in 1985, there was no facility for power of attorney to continue once the donor had lost their mental capacity. Karen Bacon of Steeles Law explores the subject of enabling digital by default.
Following concern over the abuse of EPAs, particularly those that remained unregistered, despite the donor having a reduced capacity for decision-making, the Mental Capacity Act 2005 introduced lasting power of attorney (LPA).
LPAs are intended to provide safeguards in the form of a certificate provider and a person told of the application to register, in addition to the need to register.
The Office of the Public Guardian (OPG) had clearly not expected as many donors to register LPAs immediately, as there were excessive delays from the outset. Legal practitioners could see that the intended safeguards were flawed, particularly as, unlike in Scotland, there was no requirement to have a professional certificate provider.
As a result of this, and in line with the Ministry of Justice (MOJ) Transforming Justice agenda, and the government's commitment for more public services to be 'digital by default', the OPG issued a consultation that ended in November 2013. This set out initial proposals for the delivery of a fully digital method of creating and registering lasting powers of attorney (e-LPAs). This will require primary legislation, and the MOJ will make a final decision this year as to whether such legislation should be passed.
The OPG claims that the introduction of fully digital LPAs will enable it to deal effectively with future volumes, and deliver services that are more effective and less costly. It is already possible to complete LPA forms online, where errors will be automatically checked, and fees can also be paid online. However, the LPA still has to be printed, signed and posted to the OPG for registration. Of approximately 54,200 applications received in the last 9 weeks, approximately 10% were completed digitally.
Welcome developments are the online check for errors before completion, and a faster registration process. Other benefits include access to OPG registers, and the proposed combined form for property and finance and health and welfare LPAs.
However, there is some concern that fully digitising the LPA process will put vulnerable people at risk in several ways:
- The donor does not need to physically sign and have their signature witnessed, omitting a necessary safeguard against abuse of vulnerable people.
- About 16 million people in the UK lack basic computer skills, with the elderly, disabled, and those on a low income, most likely to fall within this group. The OPG is still considering how to support consumers to access OPG digital services through alternative routes.
- It's unclear whether or not all parties must be present at the same time, using the same computer, to complete the LPA - and if not, how the certificate provider will know whether or not pressure has been put on the donor, and/or if the donor understands the LPA.
- There is a proposal to use online identity assurance to verify the identities of those involved in making an LPA. But at present, it's unclear how this will work and how/whether it will be possible to prevent a third party from fraudulently creating an online identity for a 'donor' who is completely unaware of the LPA.
There are also concerns regarding the acceptance in other jurisdictions of digital LPAs that are not deeds.
Karen Bacon, head of wills, probate and tax at Steeles Law, and a full professional member of the Society of Trust and Estate Practitioners (STEP), says: "While I welcome any measures to make the preparation of lasting powers of attorney quicker and more efficient, I am very concerned about the introduction of a fully digital LPA without physical signatures, as this may increase the possibility of duress and fraud against the most vulnerable members of society."