News focus: Power of attorney reforms

After government backing for a private member’s bill to allow lasting powers of attorney (LPAs) to be made completely online, the reforms to modernise the process entered the statute books last week when the Powers of Attorney Act received royal assent.

The LPA is a legal agreement designed to protect people who may lack mental capacity when decisions are made about their care, treatment and financial affairs. People are thereby permitted to grant decision-making powers to someone else in circumstances where they lose capacity.

Millions of people rely on an LPA to make sure their care and finances are taken care of should they lose mental capacity, justice minister Mike Freer said last week. ‘This act allows us to modernise the service, introduce new safeguards from fraud and abuse, and make it simpler to give people peace of mind their interests will be protected.’

Digitising the process should speed up registration time by spotting errors earlier and allowing them to be fixed online, rather than waiting for documents to be posted back and forth between the applicant and the Office of the Public Guardian (OPG).

That is good news for the OPG, which receives an average of 5,700 paper LPAs every day. The number of applications is expected to exceed one million for the first time this year. The OPG processes 80,000 sheets of paper every day. The number of documents it deals with annually amounts to roughly 11 tonnes of paper.

The OPG was ‘drowning’ in paperwork, Stephen Metcalfe MP, who introduced the private member’s bill, told the Commons last December. ‘The OPG reports that it is taking up to 20 weeks on average to process an LPA application, against its target of eight weeks. Others will be receiving letters from constituents asking for assistance, as they are left unable to support their loved ones because an LPA is currently sitting in that backlog.’

But while the digital system will improve processing times, a paper process will remain for those unable to use the internet. This has been welcomed by the Law Society.

Society president Lubna Shuja said: ‘Many people in care homes or hospitals do not have the ability to use a digital service. Additionally, there are still 1.5 million homes in the UK that do not have access to the internet. These homes are likely to be composed of people aged over 65 or are households with financial vulnerability.’

Shuja welcomed the act, describing an LPA as one of the most important legal documents that a person will make. ‘The consequence of an attorney making a poor decision could result in the donor’s loss of all their assets or admission into a care home against their wishes,’ she said.

However, concerns remain.

‘The IT system used to register for online services provided by the government is complicated and difficult to use, even for those who are digitally literate,’ Shuja said. ‘We are also concerned about the lack of detail on the proposed ID verification system and whether those who are not digitally literate can access the digital system without significant support. It is therefore critical that people are given a genuine choice and that the service does not become digital by default.’

Responding to the Society’s concerns, the Ministry of Justice said a modernised LPA will offer people a more convenient and simpler way to make an LPA by giving them the choice to make it online, on paper or to combine both methods.

A ministry spokesperson said: ‘A modernised system offers people the flexibility to make an application in a way that is best tailored to their needs, whether it be online or on paper. As part of this, an improved paper process will be introduced for those unable to use the internet. The new Powers of Attorney Act is a vital step forward in ensuring that the system will be quicker and simpler, with fewer errors and better protection from fraud.’

Solicitors will still have to wait for the new system, which is currently being developed by the OPG. ‘More information on when it will be available will be published in the coming months,’ the MoJ said.

In the meantime, the OPG has hired more staff to process applications. Around 19,000 more LPAs are now being registered per month than before the pandemic. So when will the OPG get back to hitting the eight-week target? By the end of the 2023-24 financial year, it is hoped.

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