The Powers of Attorney Act 2023: Digital LPAs
Posted on 27th September 2023
There are changes coming into effect regarding Powers of Attorney in England and Wales, these changes are as a result of the new Powers of Attorney Act 2023 stemming from the Powers of Attorney Bill which received Royal Assent on 18 September 2023.
It is not yet known when the Act will come into force, and therefore when the changes will take place, but rest assured, our solicitors for LPAs will keep you updated.
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Purpose of the Act
The goal of the Act is to modernise the process of making Lasting Powers of Attorney. One of the main reasons for reform is that arguably, the system for creation and registration of Lasting Powers of Attorney using paper applications is too complex for donors and is not efficient for the Office of the Public Guardian, who register the documents.
The Government have said that whilst the Act will make it easier for Lasting Powers of Attorney to be created, it will also prevent abuse of the documents.
The Ministry of Justice have outlined many problems with the existing process for making Lasting Powers of Attorney, including:-
The paper applications are becoming increasingly outdated as technology improves and we are moving towards a more paperless society,
Lasting Powers of Attorney being made only by paper is complex and unmanageable,
The Office of the Public Guardian having to handle large amounts of paper constantly is causing a need for more staff, resources and storage.
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What are the Main Aims for the reform?
Increasing safeguarding and preventing abuse, particularly protecting the donor,
Improving the process of making and registering a Lasting Power of Attorney for all parties involved,
Promoting sustainability of the Office of the Public Guardian and keeping Lasting Powers of Attorney affordable for all.
Key Provisions in the Act
Only the donor will be able to apply to register the Lasting Power of Attorney. Currently, there is an option on the documents for Attorneys to apply to register the Lasting Power of Attorney, when the Act comes into effect this option will be removed from the forms.
Currently, the Court of Protection has the power to not notify persons named in the Lasting Power of Attorney that the document is being registered, when they deemed it not to be useful. This responsibility will now be for the Office of the Public Guardian, and their power would also extend to remove the notification requirement at the donor’s request provided there were special circumstances which justify it.
There will be identity verification requirements to be able to apply to register a Lasting Power of Attorney. These requirements will be set out by the Office of the Public Guardian. These could apply to the donor, certificate provider, attorneys, and replacement attorneys, in other words, anyone named in the Lasting Power of Attorney. If the requirements are not satisfied, the Office of the Public Guardian would not be able to register the document, and the Court of Protection would assess whether the document meets the criteria for registration and therefore decide if it should be registered by the Office of the Public Guardian.
Any attorney or named person, as well as a third party, will be able to make objections to the Office of the Public Guardian about the registration of a Lasting Power of Attorney. Objections on factual grounds include if the donor or one of the attorneys has died, or one of the attorneys does not have mental capacity to act as an attorney. Prescribed grounds include when the donor did not have mental capacity to make a Lasting Power of Attorney or they were pressured into making one.
There will be more flexibility on what can be counted as evidence of a Lasting Power of Attorney registration. At the moment, office copies provided by the Office of the Public Guardian are counted as sufficient evidence, the Act is introducing more ways to evidence a Lasting Power of Attorney registration. Now, electronic forms of Lasting Power of Attorney registration will be accepted as evidence of a Lasting Power of Attorney registration. It is also thought that there will be regulations introduced outlining what documents would constitute as sufficient evidence, this would ensure that if donors, attorneys and third parties could not access the electronic record a paper record could be sent to them as evidence, by the Office of the Public Guardian.
It will not only be Solicitors who are able to certify Lasting Power of Attorney documents. Chartered Legal Executives will also have the power to do this therefore making certified copies more accessible.
Reactions to the Act
Overall, reactions to the Act have been positive. For example, the charity Age UK have welcomed the changes relating to modernisation but were glad that the traditional paper system along with the electronic one has been retained. However, they have stated that they would have liked an express requirement for the paper system to be retained. In relation to verification of identity, Age UK have said that it would be reasonable for attorneys to be required to provide their ID as part of the application process for Lasting Powers of Attorney.
Whilst the Law Society have also welcomed the changes, they have said they are disappointed about the lack of provision for Lasting Power of Attorney certification to include consideration of the donor’s capacity expressly. A spokesperson for the society have said that making reference to a donor’s capacity would protect and safeguard the vulnerable.
So, what do the LPA solicitors at MG Legal, think? We at MG Legal have been sure to research the changes to ensure we are fully understanding of the changes that will come into effect from the Lasting Powers of Attorney Act as we know this is a complex matter and can be hard to understand.
We agree with the changes made, as our solicitors are all about transparency, and we feel the changes add to this- the Attorney, and Donors will have clearer roles, under the new Act.
What must be understood here, is that making an LPA, is a very important thing to do; and it must be done properly. Our solicitors at MG Legal are sticklers for doing things as they should be done, and this is why we recommend using our MG Legal Solicitors to prepare Lasting Powers of Attorney and make the application on your behalf, to make the process easy and stress free for you.
When can Lasting Powers of Attorney be used?
The LPA must be registered with the Office of the Public Guardian (OPG) before it can be used, which typically takes around 26 weeks at this time. The documents cannot be used until they have been registered, so our Lasting Power of Attorney solicitors recommended that people make these whilst they still have full capacity, and are less likely to need these documents, rather than waiting until they are urgently required, as they may not be urgently available.
How much do Lasting Powers of Attorney cost?
Our Lasting Power of Attorney solicitors at MG Legal currently charge fixed-fees for preparing and registering Lasting Powers of Attorney.
These are:
£300.00 plus VAT for one type Lasting Power of Attorney (i.e. a single person making a Financial LPA only)
£450.00 plus VAT for both types of Lasting Power of Attorney or for a couple to make one Lasting Power of Attorney each.
£750.00 plus VAT for both types of Lasting Power of Attorney for two people.
There is a registration fee of £82.00 per document, unless the Donor qualifies for a fee remission or exemption. This is usually assessed based on financial means, and the form for this remission is called an LPA120.
Should I use a solicitor to draft Lasting Powers of Attorney?
You can make Lasting Powers of Attorney yourself online. Indeed, legislation has recently been proposed (currently awaiting Royal Assent) to make the procedure of Lasting Powers of Attorney digital and easier. However, the documents can be confusing, and not everyone is able to access digital applications.
Our Lasting Power of Attorney solicitors are on hand to assist with the process from start to finish, ensuring you understand the process, the documents you are signing, and that you receive the fully registered documents returned to you, ready to us.
To arrange an appointment to make Lasting Powers of Attorney with our team of local Lasting Power of Attorney solicitors, contact our team by emails at wills@mglegal.co.uk, or contact your local office, here.
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