The Office of the Public Guardian (OPG) and the Ministry of Justice have launched a consultation to examine the process of creating and registering Lasting Powers of Attorney (LPAs). Due to the huge changes in society and technology since LPAs were introduced 14 years ago, the OPG and Ministry of Justice see a need to modernise the LPA process. The consultation in full is available here and this article will cover an overview of the consultation’s proposals.
Roll of witnesses
The consultation is considering whether there is a value to the role of the witness and whether to retain this or whether alternative options could be considered.
Under the current rules, a witness’s only role is to verify that a person has signed the LPA. This means that witnessing provides a limited safeguard. The OPG also believe that many users don’t understand the role of witnesses and often misinterpret their role with that of the certificate provider (although noting that this is often caused by the certificate provider also acting as witness).
The witnessing process can cause some practical difficulties and some struggle to have the LPA signed and witnessed in the right order. Signing and witnessing errors also make up a significant number of errors leading to the OPG deeming an LPA to be imperfect or invalid. Fixing these errors requires extra effort, time and cost.
The OPG have a number of suggestions to amend the role of the witness:
- Remove the need for signatures to be witnessed and introduce no alternative. This would make the process easier and reduce the number of errors. It may however put donors at risk if it does provide a safeguard and reduce the perceived legal weight of creating an LPA and make donors and attorneys less likely to consider its legal significance.
- Allow for signatures to be witnessed remotely. This would remove physical issues whilst retaining the safeguards of a witness but there is a risk that some users may find digital witnessing more complex and it could be open to some manipulation.
- Replace witnessing with a new safeguard that provides a similar function that would provide the OPG with objective evidence that an LPA has been created validly. The safeguard provided by witnessing should be retained, or improved, and be appropriate for digital channels. Some technological options are suggested by the consultation.
The Government’s preferred approach is option c.
Role of Application
Under the current rules, once an LPA has been created the donor can decide to delay sending the LPA to the OPG for registration under a later date and there is no time limit on how long an executed LPA can be stored before being registered. The fact that the LPA is only checked for validity once it reaches the OPG creates a risk if an error has been made. An error may prevent registration if the donor has lost mental capacity in the meantime.
The OPG did note that there are reasons for delaying, such as due to cost or where the donor may need to make changes later in life and wish to avoid multiple registration fees. Changes to make LPAs amendable are out of the scope of the consultation but they are considering on ways to make this possible in the future.
The OPG are seeking to reduce and limit the number of errors made in an LPA before it is sent for registration and implement these in a new service to increase speed and simplicity of registrations. They have suggested two different approaches:
- Execution of the LPA starts the registration process. A new requirement will be included that an LPA is sent for registration as soon as it is executed. Checks on the content of the LPA would be automated as far as possible and carried out upfront.This approach would remove additional complexity, avoid errors not being found until the donor has lost capacity and also benefit OPG investigations where there is an objection on the grounds of the donor’s capacity as evidence would be easier to gather when closer to the time of execution. It would however remove an element of choice as some donors will wish to delay registration until they are ready. It would also require a time limit for the completion of the LPA.
- Retain the current ability to delay registration but a new requirement for the OPG to store digital copies of unregistered LPAs would be added in. The OPG would make some basic checks but more complex checks would be completed when the LPA is sent for registration. Payment would need to be made at the point of execution to cover storage costs.
The Government’s current preferred approach is option a.
The OPG currently has limited powers to stop the registration of an LPA but it largely reliant on third parties to raise concerns. The OPG’s research indicates that there is a public misunderstanding that the OPG complete accuracy or identification checks which is not the case. Their research also shows that introducing ID verification checks would be viewed positively.
There are two different approaches that could be taken to modify OPG’s functions:
- Conditional registration. The OPG’s remit would be widened so that an LPA could be registered, or rejected, depending upon the outcome of a new set of prescribed checks during the creation and registration process, including ID checks and potentially the ability to limit who can be an attorney on the basis of prior relevant convictions. If these checks are failed, the LPA could not be registered with unless directed by the Court of Protection.
- Discretionary registration. OPG’s remit would be widened so that an LPA could be registered, or rejected, depending on whether the OPG judged that the LPA was within a safe risk threshold. ID verification would be included within this. Checks on LPAs by the OPG would be added together to determine a risk score for the LPA. If the risk is below a certain threshold set by legislation, it could not be registered. LPAs within a tolerance level would be reviewed by caseworkers and approved or rejected at their discretion.
The government’s current preferred approach is option a.
How to Object
Under the current rules, objections to the registration of an LPA can be made either due to a prescribed objection or a factual objection. We covered this in detail in a previous article. The consultation has received evidence that there is confusion on how third parties can object to registration and also on where objections should be made. The consultation makes the following suggestions.
- The OPG receives all objections from all parties. The OPG would then review and investigate objections. This would make it easier for those with an objection to know where to go and what to do.
- The OPG only receives factual objections. Prescribed objections would go to the Court of Protection and the OPG would not review or investigate these unless directed to by the Court.
The Government’s current preferred approach is option a.
When to Object
Currently any objection to the registration of an LPA must be raised within the 4 week statutory waiting period that is part of the registration process in order for it to be investigated by the OPG before registration. Evidence obtained by the consultation has shown there to be concerns that the statutory waiting period is more of a time delay than a safeguard although some have voiced reservations to any reduction of the time period. Donor’s will also sometimes change their minds and withdraw their application in this time period.
The consultation suggests three different ways changes could be made to time limits on objections.
- Objections could be raised from the point the donor starts creating their LPA until it is sent for registration.
- The statutory waiting period could be retained but reduced in length.
- The statutory waiting period could be removed entirely provided that other safeguards and checks create a high level of protection.
The Government’s current preferred approach is a combination of all of the above.
Speed of Service
Throughout the consultation the OPG are looking at ways to reduce the amount of time it takes and create a smoother process. The OPG’s current target for registration of LPAs is 40 working days from receipt of the application and currently it does not offer any type of priority service. Evidence obtained by the consultation suggests speeding up the process is desirable but the amount requesting a specific fast track service is quite small.
A dedicated urgent service is suggested by the consultation. Through the previous suggestions, it may be possible to reduce the registration time down to two weeks for most LPAs. To provide an urgent LPA service quicker than this timeframe, deliberate delays in the process would need to be removed or reduced beyond the current proposals. The service would need to be restricted to those who could demonstrate an urgent need and likely require medical evidence of an urgent need and why it is in the donor’s best interests. Proof of need would also be vital to ensure requests were not being made with malicious intent.
There is the risk that more provisions included into a fast track service could make the process more complex and require the OPG to manually interrogate detailed evidence and it could become difficult for the OPG to run and the public to use. High intake without the ability to automate the review of evidence could actually result in longer registration times than the standard service.
The Government’s current preferred approach would be to not proceed with an urgent service.
Solicitor Access to the Service
The OPG is also considering ways to support solicitors to use a new modernised service through the use of integrated digital systems for the submission of LPAs for registration and whether parts or all of this should be mandatory.