The government is reforming the law on making lasting powers of attorney (LPAs) in England and Wales. The main purpose of the legislation is to reform the overall process of making and registering a lasting power of attorney to make it safer, easier and more sustainable.
The Powers of Attorney Bill (the Bill) received its second reading in parliament on 9 December. The Bill will amend the Mental Capacity Act 2005 and provide for secondary legislation to change the regulations on LPAs.
STEP was invited to sit on the Office of the Public Guardian (OPG) and Ministry of Justice’s (MoJ) Modernising Lasting Powers of Attorney (MLPA) stakeholder working group in 2020.
We have attended several workshops over the past two years to help shape and develop the consultation. It engaged with the public and stakeholders to gather their views on proposals to modernise the creation and registration of LPAs. The consultation helped the government expand its evidence base and prepare for any legislative changes which have resulted in the Bill.
The major proposed changes include the following.
- The main aim of the Bill is to allow regulations to provide for making an LPA online or on paper, or by a combination of both. A digital system will speed up the process, mitigate the administrative burden and scope for error and reduce the backlog of registrations.
- Amendments to Schedule 1 of the Mental Capacity Act 2005, which covers the provision for the making and registration of LPAs. A major change is that the Public Guardian will need to verify the identity of certain parties as part of the registration process in order to mitigate identity fraud.
- The Bill introduces identity checks as a requirement of registration. This important safeguard will assure the OPG that those who claim to be involved in the LPA are who they say they are. It will reduce the risk of fraud by false representation. Regulations will support the change by specifying that the donor and the certificate provider will be subject to checks. They will also specify how those checks will be carried out and which documents will be acceptable.
- Currently the applicant is required to notify the ‘named persons’ in the LPA application so that they can raise any objections. The Bill amends this so that the Public Guardian will send these notifications, increasing the protection for the parties involved.
- The current objection process is complex, with different routes for different people, depending on the type of objection. The Bill introduces a single route for all objections, starting with the Public Guardian and progressing to the Court of Protection if required. This will bring more clarity about how and where to raise concerns about the registration.
- The LPA will be registered as an electronic document. This will be a single central source, which can be accessed by third parties and updated by the Public Guardian without requiring the paper version to be returned.
- The Bill will also amend Section 3 of the Powers of Attorney Act 1971 to enable chartered legal executives to certify copies of a power of attorney.
We are delighted that the government has incorporated some of STEP’s key proposals and we will keep members updated about further developments.
Emily Deane TEP, Technical Counsel & Head of Government Affairs