STEP informed members in November 2020[1] that the Ministry of Justice (MoJ) and the Office of the Public Guardian (OPG) had jointly initiated a project to modernise the process of making and registering lasting powers of attorney (LPAs) in England and Wales. The collaboration involved a series of stakeholder working groups to obtain research that has culminated in the publication of the consultation that was published this week.[2]

STEP was invited to sit on the Modernising Lasting Powers of Attorney (MLPA) stakeholder working group and has attended various workshops over the past six months to help shape and develop the consultation. The consultation will further engage with the public and stakeholders to gather their views on proposals to modernise the creation and registration of LPAs, helping the government to expand its evidence base and prepare for any legislative changes.

The overarching objectives of the modernisation project are to:

• increase safeguards, especially for the donor
• improve the process of making and registering an LPA for donors, attorneys and third parties
• achieve sustainability for the OPG while keeping LPAs as affordable as possible for all people in society.

The consultation considers how best to achieve these aims and what amendments to primary legislation might be needed to facilitate them. Any substantial changes will require amendments to the Mental Capacity Act 2005, which brought in the current system. 

The consultation also intends to review the following aspects of the existing regime:

• How witnessing works and whether remote witnessing or other safeguards are desirable.
• How to reduce the chance of an LPA being rejected due to avoidable errors.
• Whether the OPG’s remit should be expanded to have the legal authority to carry out further checks such as identification verification.
• How people can object to an LPA and the process itself, as well as when is the right time for an objection to be made.
• Whether a new urgent service is needed to ensure those who need an LPA granted quickly can get one.
• How solicitors access the service and the best way to facilitate this.

STEP has emphasised that there need to be more advanced identity checks for donors, which would consequently improve safeguards, since identity fraud and theft are currently accessible particularly if someone has access to a Health & Welfare LPA and the donor is incapacitated or vulnerable. We have also highlighted that ID verification online may be technologically robust but there will be a small demographic, usually the more elderly, that do not have access to a computer or smartphone for verification. The MoJ and OPG have stressed that empowering and protecting the individuals acting as donors in the LPA process is of paramount importance and amendments to the legislation will only be made if modernisation will provide the same level of protection or preferably enhance it. However, it is clear that the industry is becoming more digital and we have seen accelerated evolution on the digital platform due to the COVID pandemic in the last couple of years. STEP has reinforced that it is essential that any new online system is securely piloted within the industry before it is implemented.

The MoJ and OPG are holding a consultation launch event on 28 July for members of the MLPA stakeholder working group, which STEP will attend. The event will be introduced by Minister Chalk and the Public Guardian, Nick Goodwin, which will be followed by a Q&A panel with the Public Guardian and members of the MLPA team.

The consultation seeks all views from the private sector and will remain open for 12 weeks, until 13 October 2021. STEP will be submitting a formal response in due course.

Emily Deane TEP, STEP Technical Counsel

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[1] STEP Blog: https://blog.step.org/2020/11/23/modernising-lasting-powers-of-attorneys-in-england-and-wales/

[2] https://consult.justice.gov.uk/opg/modernising-lasting-powers-of-attorney