A simpler and quicker system to set up power of attorney could be on the way, but experts warn it must include safeguards against abuse of older and vulnerable people.
Lasting power of attorney is a legal failsafe that allows people to appoint someone they trust, usually a family member or friend, to take control of their affairs if they fall ill.
The Government is consulting on proposals to modernise the process, including a fast-track to grant LPAs to those who need them urgently, removing the requirement for a witness, and a digital checking service.
Legal protection: Lasting power of attorney lets loved ones take control of your affairs if you fall ill
Registrations of LPAs have surged in recent years to cover around five million people, but this still involves paperwork under a system that originated more than 30 years ago.
Legal and financial experts have welcomed the overhaul, but say going fully digital could mean more people are targeted for fraud or coercion, and point out some of the elderly do not have access to a computer or smartphone.
Justice Minister Alex Chalke says: ‘An LPA is not just a piece of paper. It is a legal agreement that allows a person to set out their wishes and preferences and have peace of mind that these will be followed.
‘The protections that exist in the LPA are based on decades, if not centuries, of tradition and legal case law. They’re based on known and trusted paper-based social conventions, such as signing and witnessing.
‘However, the world is changing and people increasingly want to access services digitally. The Covid-19 pandemic has accelerated this demand.’
Lasting power of attorney helps families keep control if illness or accident strikes
Why you need this and how to set it up. Read more here.
What happens if you or a family member fall ill without an LPA in place? Read more here.
The consultation will include the following issues.
– The role and value of witnessing LPAs, and whether this should be done remotely or simply abolished.
The Government says: ‘Our preferred option is to replace the witness with new safeguards that perform the same function.’
– The application process, how to reduce the chances of rejections, and the benefits of reducing or keeping the current delay between execution and registration of an LPA.
The Government says it would like to see LPAs digitally checked as they are being made, and sent for registration as soon as they are executed.
– Changes to the role of the Office of the Public Guardian, which oversees the attorney system and deals with any complaints against people holding this important power.
This could include widening its remit to verify people’s identity, and stop or delay an LPA’s registration if it has concerns, and to make it the first stop for objections to an LPA.
The Government says it wants to allow people to object to an LPA from the time the donor starts creating it to the point it is registered.
– A dedicated, quicker service for people who need an LPA urgently, and whether this would have any benefits over making the service faster for everyone.
But the Government adds: ‘Our preferred option is not to introduce a dedicated service, as we do not believe it’s possible to create a faster service with a high enough level of safeguards that is not also overly complex.’
A digital process for setting up LPAs could make it simpler but also raise significant risks, according to Holly Chantler, director of Solicitors for the Elderly and head of private client at Morrisons Solicitors.
Holly Chantler: ‘A fully digitalised platform could mean more older and vulnerable people being targeted for fraud, coerced or abused’
Chantler, who represents SFE in a group providing feedback and advice to the Government, says it’s important that safeguarding measures are put in place to protect older and vulnerable people.
‘Modernising the process could offer a more simplified and user-friendly platform. It could also make creating an LPA more affordable and encourage a greater number of people to consider making one, which is undoubtedly a good thing.
‘However, simplifying the process also carries greater risks, including vulnerable people making mistakes in their application, as well as leaving them more open to abuse of power and fraud.
‘You should always speak with an experienced lawyer who will be able to understand your circumstances and ensure that your LPA is well drafted, clearly setting out what you want and ensuring it will be approved.’
Chantler adds: ‘Digitalisation is happening worldwide and offers a fantastic opportunity to improve many legal services, but a fully digitalised platform could mean more older and vulnerable people being targeted for fraud, coerced or abused.’
Emily Deane, technical counsel at the STEP trade body of inheritance professionals, says: ‘The modernisation of LPAs is something we strongly welcome.
‘Society is becoming increasingly digital and we are seeing an accelerated evolution of the digital LPAs platform because of the Covid-19 pandemic.
‘It is right that the system keeps pace with these changes. However, it is important that the Government gets the proposed reforms right if it is to achieve its aim of empowering and protecting ordinary people acting as donors in the LPA process.
‘For example, it is crucial that the reforms include advanced identity checks for donors, which will act as a safeguard against identity theft and fraud, particularly against those who are incapacitated or vulnerable.
‘To achieve this, any new online system should be securely piloted within the LPAs industry before it is implemented.
‘Additionally, even in our highly digital society, there is still small demographic of mainly elderly people who do not have access to a computer or smartphone.
‘We will be calling on the government to ensure these groups are not neglected as it pushes forward with its reforms.’
Kim Jarvis, technical manager at Canada Life, also welcomed modernisation plans saying: ‘The number of registered LPAS has increased drastically in recent years to more than five million, but the process of making one retains many paper-based features that are over 30 years old.
‘This is already an unsustainable process in today’s society and will become increasingly outdated in years to come.
Currently there is a delay of about 12 weeks for people to get LPAs registered and this consultation will assess the possibility of creating a digital fast-track service for families who need to quickly set up an LPA for a relative who has suffered a sudden change in their health.
‘It will also look at making the process of objecting to an LPA simpler, as well as introducing new safeguards to protect against fraud and abuse.’
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