Digital Lasting Powers of Attorney - Will they be safe?

Digital Lasting Powers of Attorney - Will they be safe?

The Ministry of Justice is looking to modernise the process of creating Lasting Powers of Attorney and introduce making LPAs completely online. Powers of Attorney have come a long way from the pre-printed double-sided booklet that was predecessor to the LPA - the "Enduring Power of Attorney" or EPA - that could be made from 1986 to 2007.

By 2007, as EPAs could be made by individuals at home and taking professional advice was not obligatory, there were concerns over the number of EPAs made without the full understanding of the Donor. It was felt that there were not enough safeguarding measures in the EPA making process – and this led to the creation of Lasting Powers of Attorney or LPAs.

Although EPAs did not have to be registered until the Donor was beginning to lack mental capacity to manage their financial affairs, they had one important protection; anyone dealing with the Attorney could ask the Donor of an unregistered EPA to confirm that the Attorney was acting within their authority. Once the Donor lacked mental capacity, the Court of Protection was involved and could protect a vulnerable Donor by asking the Attorney for accounts and investigate any claims of financial abuse.

Unlike the old EPAs, LPAs must be registered with the Office of the Public Guardian prior to use and registration is proof of the authority of the Attorney to act. So, unlike in the days of EPAs, the Donor is therefore unlikely to be asked by anyone dealing with the Attorney, if the Attorney is acting as the Donor expects. This means that a vulnerable Donor needs to be confident that they understand what is involved in making an LPA and adequate safeguards are in place to avoid abuse.

For the time being, Lasting Powers of Attorney need to be printed off and signed by the Donor and Attorneys, all of whom need witnesses to their signatures. Digital signatures are not accepted. In addition, a Certificate Provider must confirm on the form that the Donor understands the LPA and that no fraud or pressure is being put on them to make it.

Making an LPA online would mean that there need no longer be a physical witness to the Donor's signature – and The Law Society and STEP are concerned about the impact that this would have in terms of safeguarding the Donor against fraud, coercion or pressure.

LPAs are legal documents that give the Attorneys wide powers over decisions that affect the Donor's life when their mental capacity is diminished – and can allow the Attorneys to deal with everything from finances, to where the Donor lives or even the life sustaining medical treatment they receive. An independent witness watching the Donor sign is able to assess whether the Donor does understand and want to make the LPA – and could give evidence on this to the Office of the Public Guardian if there were concerns over how the LPA was made.

The Certificate Provider must currently have met with the Donor and spoken to them about the LPA to be able to confirm that the Donor understands what he or she is signing. Digital creation of LPAs will need to include this safeguard for Donors, but it is not yet clear how the Ministry of Justice intend that this protection be maintained through an online application.

For the time being, we remain bound by signatures on a printed LPA and it is likely that paper applications to register LPAs always be an option for those who do not have access to the internet, or those uncomfortable with making an LPA digitally.

Both STEP and The Law Society welcome making LPAs easier and quicker to create, but are looking to see that there is a comprehensive set of safeguards linked to the online creation of LPAs. Because of the lack of human element in the signing process, how to prove that the Donor has mental capacity and understands the nature of the document they are signing will need careful consideration. The government will produce further details on these points before making LPAs online becomes possible and potentially safe.

At Clapham & Collinge we have a team of expert lawyers who provide advice and assistance in the preparation of your Lasting Powers of Attorney to make sure they are right for you and reflect your wishes. We also register the documents as soon as they are prepared to ensure that they can be used straight away if needed.

For more information on Lasting Powers of Attorney, please visit our dedicated Lasting Powers of Attorney webpage.

To find out more or to discuss your individual requirements in further detail, our Lasting Powers of Attorney specialists are on hand to help. Contact us today on 01603 693500 or email us using 'Make an enquiry' form. Appointments available at our Norwich, North Walsham and Sheringham offices.

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*This article is provided for general information purposes only and does not constitute legal advice or other professional advice.