In an era which continues to move increasingly online we are due to see another area of law progress into the digital world, designed to increase safeguards for individuals and families when planning for their future.  Recent developments for Lasting Powers of Attorney (LPA) are due to be introduced with the Powers of Attorney Act which received Royal Assent last month, seeing a significant shift from a paper-based process to a digital one.  Bethan Creasey, Solicitor in our Wills, Probate & Estate Planning department, explains more about the upcoming changes and why having an LPA is so important.

Powers of Attorney Act; what are the changes?

These reforms have been long-awaited, building upon a Government consultation in the Summer of 2021 and a subsequent Ministry of Justice response in May 2022. The legal community and respondents to these initiatives have, with cautious optimism, welcomed the progress towards digitisation. Still, there remains the emphasis on the importance of safeguarding the interests of the most vulnerable in this digital transition.

The cornerstone of these reforms is the strengthening of protections against abuse or fraud. The Government is set to introduce identification checks, which will necessitate the submission of official documents or information, such as a driving licence, passport, or a Government Gateway account. These checks will not only enhance the verification process but also provide a layer of security to ensure that LPAs are executed with the utmost integrity.

The Office of the Public Guardian believes that the shift to digital LPAs will significantly reduce errors made by donors, attorneys, and other involved parties.  Having an error on the document is one of the most common reasons why an LPA is rejected by the OPG, creating a delay for the applicant as they are required to re-submit the document at a later date with the error corrected.  By detecting any such errors early, the applicant can rectify the mistakes before registration. This streamlined approach is anticipated to reduce waiting times for LPA approval. Moreover, the reforms will also scrutinise and simplify the process of witnessing, possibly by removing the need for witnesses altogether, further expediting the process.

The reforms will also empower Chartered Legal Executives (CILEX lawyers) to certify LPAs. This development has been hailed as a positive and necessary step, aligning with the Legal Services Act 2007, which permits Chartered Legal Executives to provide legal services akin to solicitors. This change will take effect in just two months’ time, bringing much-needed equality to the profession.

Why should I write a Lasting Power of Attorney?

Having an LPA in place is one of the best ways to protect you and your loved ones in the future as it allows you to choose a person to act on your behalf in relation to your finances and/or your health and welfare should you no longer be able to. There are two variations of LPA:

  1. Health and Welfare LPA – this LPA can only be used once mental capacity has been lost and will allow your attorney to make decisions on your behalf in relation to your living arrangements, day-to-day care and routine, and medical treatment.
  2. Property and Finances LPA – this LPA can be used at any time once it has been registered, but only with your permission. It will allow your attorney to manage your bank accounts, pay bills, withdraw cash and make decisions relating to your property.  If you ever lose capacity, your attorney will then be able to take over such decisions for you, seamlessly.

It is a common misconception that your next of kin will automatically be entitled to manage your affairs should you lose capacity.  In fact, they will need to apply to the Court of Protection in the absence of an LPA in order to become a Deputy; a costly and lengthy process at a time when you will be focusing on other matters.

Bethan commented about the reforms, “Lasting Powers of Attorney are invaluable in allowing individuals to appoint attorney(s) whom they trust to manage their affairs when they are no longer in a position to be able to do so themselves. The reforms will assist in modernising the process and ease management of affairs by the attorney(s) making their role as an attorney, at an already stressful and emotional time, that much easier to handle. We welcome the changes and look forward to them coming into effect.”

Should you have questions about writing a Lasting Power of Attorney, you can contact Bethan or a member of the team by using our Contact form, emailing moc.n1702098531ellub1702098531rekra1702098531p@ofn1702098531i1702098531 or contacting your local office:

  • Lasting Power of Attorney Solicitor Andover: 01264 400500
  • Lasting Power of Attorney Solicitor Romsey: 01794 328688
  • Lasting Power of Attorney Solicitor Salisbury: 01722 412000
  • Lasting Power of Attorney Solicitor Witney: 01993 670944

Our contributor

Bethan Creasey

Solicitor

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