Powers of Attorney have been around in some format since the 1970s, evolving from the Powers of Attorney Act 1971, to the Enduring Power of Attorney Act 1985, to the Mental Capacity Act 2005, and latterly the Powers of Attorney Act 2023 which brings us up to date and aims to modernise the process of making a Lasting Power of Attorney (LPA).

LPAs are legal documents that you create to give authority to someone you know and trust (Attorney) to make important decisions about your health, welfare, finances and property if you ever lack capacity to make such decisions for yourself.

For the property and finances document, you can choose to use this out of convenience as well as necessity, which makes it very flexible.

The current process to make an LPA involves completing a paper or electronic form, which all parties must sign with wet ink signatures. It is essential that all parties sign in a certain order and that each person meets the requirements to act as in their specific roles as an Attorney, Certificate Provider or independent witness.

The person making the LPA (Donor), or their Attorney(s) can apply for the LPA to be registered once it has been completed or at a later date, possibly after the Donor has lost capacity. It can take up to 16 weeks to complete the registration process.

Our Wills, Trusts & Probate Solicitors take a look at the proposed changes to this process.

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The proposed changes to the process

The new digital process promises to be simpler and quicker, aiming to significantly reduce the time it takes to make an LPA, as follows:

  • Parties will be able to choose whether to sign the LPA digitally, using wet ink signature or by a combination of the two.
  • The Donor will be the only person who can register the LPA. It will be important to ensure the LPA is registered as soon as the LPA is completed to avoid the risk of the Donor losing capacity before registering it.
  • To protect against fraud and abuse, the new process will include new identification requirements. It is expected to ask for documents such as a passport or driving licence that will need to be verified.
  • It will be easier to obtain additional official copies, which you will be able to obtain online instead of needing to obtain certified copies.
  • There will be a wider group of people who can raise objections to a proposed LPA. We anticipate that this will result in an increase in disputes relating to LPAs.

The proposed changes are certainly a positive step towards the digital age that we now live in and we welcome the opportunity to help people who live further away because it has so far been very difficult to deal with LPAs remotely.

However, we are yet to see how the online system and additional safeguards will work. Extensive testing and training will need to be carried out to ensure that the process meets its objectives and is secure.

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New lasting power of attorney considerations

At Myerson, we often act as a Certificate Provider, which means that we sign the LPA to certify that the Donor has mental capacity and is executing the document of their own free will and not acting under duress. It is not yet clear what responsibility a Certificate Provider has to confirm the mental capacity of the Donor under the new system, which we believe potentially leaves scope for issues.

The laws of making LPAs will not change and it still important that all parties involved in the process seek advice to ensure they understand the legal principles and their obligations.

Any Powers of Attorney made under previous legislation may still be effective but, as with all legal documents, they should be periodically reviewed and checked to see if they are still fit for purpose or whether they should be updated due to changes of family of financial circumstances.

For those of you who would like to put an LPA in place but do not have close or trusted family and/or friends to make decisions about your property and financial affairs, it is still possible to appoint professionals to assist.

At Myerson, we have our own Trust Corporation (Myerson Trust Corporation) who will be able to act as an independent Attorney if there is no one else appropriate to act.

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If you would like further information about how we can help to set up a new LPA or to review existing arrangements, please contact our specialist solicitors in our Wills, Trusts and Probate team today on: