The Powers of Attorney Act 2023, receiving Royal Assent on 18th September, marks a significant shift in the legal framework surrounding Lasting Powers of Attorney (LPA). Its primary objectives include enhancing safeguards against fraud and abuse, and streamlining the LPA process through digitisation.
The Powers of Attorney Act 2023, receiving Royal Assent on 18th September, marks a significant shift in the legal framework surrounding Lasting Powers of Attorney (LPA). Its primary objectives include enhancing safeguards against fraud and abuse, and streamlining the LPA process through digitisation.
The Act introduces crucial measures, such as:
Legally, it amends the Powers of Attorney Act 1971 and the Mental Capacity Act 2005, paving the way for these online procedures. Although the implementation is still pending, extensive testing is underway to ensure its simplicity, functionality and security.
With over six million registered LPAs nationwide, the existing paper based system has been long due for an upgrade. This new digital approach promises to resolve issues more efficiently; a welcome change from the weeks-long delays typical of the paper process.
Importantly, provisions remain for those unable to access digital services, though it’s yet to be clarified how paper and digital processes will integrate for LPA searches.
The legal community has greeted the Act with cautious approval. The Law Society recognises the need for thorough testing before the full launch. However, the Act also faces criticism for missing an opportunity to clarify the expectations from certificate providers - crucial figures in the LPA process responsible for confirming the maker's capacity and volition.
Current guidelines for certificate providers, as outlined on the gov.uk website, include friends or professionals like GPs and solicitors. Yet, experts argue that expecting non-professionals to assess the maker's capacity and vulnerability to coercion is unrealistic. For a system meant to safeguard, the need for more robust checks is evident.
While the Powers of Attorney Act 2023 aims to modernise and expedite the LPA process, its success hinges on rigorous testing and perhaps a deeper revision of roles, particularly of certificate providers. It's a step in the right direction, but one that must be taken with care to truly protect the vulnerable in our society.
“Ensuring your wishes are protected, and decisions are made by a person of your choice, is of the utmost importance for future planning. We’re delighted to hear that measures are being taken to ensure a timely response to a Lasting Power of Attorney (LPA) application. However, we understand the importance of safeguarding the most vulnerable within our society, by maintaining a paper-based application and supporting certificate providers. We hope the testing process will provide further clarification.
Whilst LPAs can be applied for without the need of a solicitor, we encourage people to seek legal advice to ensure a smooth process for all involved.”
Rachel Dyson, Director and Head of Private Client Department
The Private Client team at Freers Askew Bunting eagerly await the results of the testing phase and we are hopeful for further clarity on the responsibilities of all involved in the LPA process.
If you need any advice regarding a Lasting Power Of Attorney, please get in touch with Rachel and the team here.
