On 18 September 2023, the Powers of Attorney Act received Royal Assent, having been introduced in 2022 and passed through Parliament unopposed.

The Act paves the way for changes to how Lasting Powers of Attorney (LPAs) are made and registered in England and Wales, aiming to modernise and simplify the current process whilst furthering the protection of the individual making the LPA from fraud and abuse.

But exactly what changes are proposed? Myerson Solicitors' Wills, Trusts, and Probate Team explore.

What are LPAs?

Powers of Attorney were introduced in 1985 as 'Enduring Powers of Attorney' and replaced by LPAs on 1 October 2007.

An LPA is a legal document that provides authority for an individual, trusted and chosen by you as Attorneys, to act on your behalf, make decisions for you and manage your affairs should you lack the mental capacity or the ability to do so yourself in the future.

In England and Wales, there are currently two different types of LPA:

  • Health and Welfare, and
  • Property and Financial Affairs.

The current process for making an LPA

The current process for making an LPA involves a form being completed electronically or on paper, with wet ink signatures required of all parties (the Donor, Attorney(s) and Certificate Provider).

An independent witness must witness each signature. This paper form must be submitted to the Office of the Public Guardian (OPG) for processing and registration.

At present, either the Donor or their Attorney(s) can apply for the LPA to be registered.

Introduction of a new digital process

The biggest change will see the introduction of a new digital process, offering individuals an alternative to the existing paper application, which itself is to be simplified and improved.

This new digital process will allow digital applications for the first time and aims to speed up the overall process by removing what can be cumbersome requirements associated with the paper form.

By introducing a digitalised process, it is hoped the service will become more generally accessible, with individuals able to choose whether to make an application digitally, on paper or a combination of the two.

Regulations are to be brought in to safeguard any online process from abuse, with the requirement of an identity check on those involved in the LPA to provide additional security.

Stringent testing is believed to be underway to ensure the system is robust and secure and to protect against any possible exploitation.

Additional safeguarding for LPAs

As an additional safeguard, the Act limits the registration of the LPA to the donor, the individual making the LPA, removing the ability of an attorney to do so.

Recognition will be given to electronic forms as evidence of registration, which will remove the need for certified paper copies.

The Act also seeks to create a clearer process for objecting to the registration of an LPA and opens the ability to raise an objection to third parties who are not named in the LPA, with any objections to be reviewed and investigated by the OPG in the first instance, rather than the Court of Protection.

These changes are coming; however, the OPG has not yet confirmed any timescale for the implementation of these changes.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.