Since their inception 36 years ago, Powers of Attorney have become increasingly popular. Created first as Enduing Powers of Attorney, then reformed to Lasting Powers of Attorney (LPAs) in 2007, these legal documents allow you to appoint people you trust to make decisions for you when you are no longer able. There are two types of LPA – one covering decisions in respect of your Property & Finance and the other relating to your Health & Welfare.
In a move thought to be needed to advance LPAs into the digital age, the government has announced a new consultation. The consultation analyses the current method of applying for these documents and makes suggestions for modernising the process. Professionals and the public have both been approached to gather their views on a range of topics. Of particular interest are those considering the speed of the application process and the potential of a digital application route for solicitors.
Speed of the LPA application process
There is no denying that the current application process can often be a long-drawn-out procedure.
Currently, LPA documents must be read through and signed by a donor (the person requiring the LPA) and all their attorneys (the people who will make decisions on behalf of the donor), and each signature must be independently witnessed. Whilst there can be instances where everyone is able to be present to sign at the same time, this is not often the case. Individual meetings are therefore required with each person signing or, failing that, the document is sent to them to sign. This part of the process can take several weeks. The consultation considered making it possible for the documents to be witnessed remotely for ease, but decided against it at the current time.
Only once everyone has correctly signed and dated their respective sections can the document be sent the Office of the Public Guardian for registration. Generally, this part of the process takes a minimum of 12 weeks as there is a delay of several weeks to allow objections to be made. It is no surprise, that the consultation found that most solicitors supported a reduction in the overall time taken to execute and register an LPA.
It also found that up to 25% of applications were made due to an immediate requirement. This may be where someone is seriously ill or close to losing capacity and an LPA is needed urgently before the donor becomes unable to make decisions for him or herself. They may be unable to wait for the 3 to 6 months it can take for the LPA to be available to use.
Urgent need cases
In light of the number of immediate need applications, the consultation considered whether an urgent service could be introduced which would allow such applications to be prioritised and processed more quickly.
Frustratingly, it seems that this is not the government’s preferred approach. It has concerns that introducing such a service would make matters more complicated and that, by speeding up the process, the safeguards that in are place for donors (such as allowing 4 weeks for any objections to the LPA to be brought) would not be possible.
While the safeguards are necessary, reducing the overall time of the application process would have been a welcome reform, especially where there is an urgent requirement for the LPAs. In the majority of cases where a solicitor is involved in creating an LPA, they will ensure that some level of safeguard checks have taken place; for example, verification of the donor’s identity and one-to-one conversations to ensure that the donor is fully aware of what an LPA entails and how it may be used.
This was a good opportunity for the government to work with solicitors to ensure the best outcome is achieved for the donor and to effectively reduce the application time when it is most needed. It is disappointing that the consultation has failed to find a remedy to this long-standing issue.
Digital application route for solicitors
Although it is currently possible for solicitors to draft LPA applications digitally, the consultation has found that the uptake for this has been very low. It found that solicitors preferred using their own document management systems to draft the application, allowing them to make amendments and save draft documents with ease. Even if drafted digitally through the government’s site, the LPA still needs to be printed off to be signed and witnessed by the donor and their attorneys.
The consultation makes some good arguments for going completely digital. In the year 2019 to 2020, 19 million sheets of paper were sent to the Office of the Public Guardian (OPG). This places a huge burden on the OPG’s resources, not to mention the mounting costs for checking, processing, and storing these documents. In addition, there is the environmental impact of producing, transporting and storing such a large amount of paper.
The consultation recognises that, for the OPG to be sustainable, uptake of the digital system needs to be much higher. They hope to make it a more attractive route for solicitors by providing features beyond what is already available in their own document management systems, as well as the ability to submit the application digitally directly to the OPG.
While the motives for going digital are credible, the consultation is not clear on how the interaction between solicitors and their clients would work where an application is mainly online. With many clients, particularly where diminishing capacity is a concern, it is much easier to go through a paper-based document together than an electronic one. It allows a solicitor to explain the LPA to the donor, provide advice on how it used, and to explain the different aspects of the LPA that they must consider. It also makes it easier for the document to be signed and witnessed. Therefore, in most cases, even if submitted digitally some elements of the process may need to remain paper based.
If the government is keen to go digital, they will need to ensure that whatever system is created for solicitors is effective, easy to use, and uncomplicated. This is essential to avoid frustration for both solicitors and clients and, more importantly, to avoid adding delays to what is already a long application process.
The consultation period is due to end on 13 October 2021. In addition to the points highlighted above, the consultation also considers whether the OPG’s remit can be widened to prevent cases of fraud and undue influence, as well as when it may be possible to object to an LPA being made. I, like many other solicitors, will be waiting with interest to see what proposals will be pushed forward and whether the reforms will ensure that the process of making LPAs is in line with the current needs of our clients.