A paper process for lasting powers of attorney will remain under the government’s modernisation plans after the Law Society raised concerns about the potential impact of an all-digital channel.
After consulting last year on modernising LPAs to increase safeguards, and improve the process of making and registering an LPA for donors (the people making the LPA), attorneys and third parties, the Ministry of Justice published its long-awaited response yesterday.
In its submission to the consultation, the Society said many vulnerable people, such as those with learning difficulties, people with a brain injury or degenerative cognitive condition, would need a paper process. It noted that five million people over 55 do not have access to the internet. Yesterday, the Ministry of Justice confirmed that a paper channel will remain available.
As well as flagging up ambiguities, such as whether the LPA will remain a deed, Chancery Lane was also concerned that many people mistakenly think the role of the ‘certificate provider’ is to assess the donor’s mental capacity.
Under the Mental Capacity Act, the certificate provider – who can be a solicitor although this is not mandatory - confirms that the donor understands the LPA, that there is no fraud or undue pressure, and there is no other reason the LPA cannot be executed.
The ministry said it will provide greater clarity around the certificate provider’s role in assessing the donor’s understanding of the LPA by issuing additional guidance and support. It ruled out a requirement that the certificate provider has to be a professional.
After receiving largely negative responses to removing the need for signatures to be witnessed, or remote witnessing, the ministry will continue to investigate the possibility of replacing the witness with a similar function within the digital channel. LPAs will continue to be treated as a deed.
Solicitors will be able to access the digital service from their existing case management systems. However, the ministry said future legislation will contain powers enabling the department to mandate the digital service for legal professionals.
The changes will require amendments to the Mental Capacity Act 2005. The government said it will bring forward legislation 'when parliamentary time allows'.
Commenting, Law Society president I. Stephanie Boyce said: 'We welcome the MoJ’s commitment to improve the speed and accuracy of making an LPA, as well as to continue to provide a paper service. Many people – such as those in care homes or people with learning difficulties – will continue to need to make an LPA via a paper process.
'We are pleased the government is looking at proposals to improve support for those who will struggle with using digital channels, as more needs to be done to ensure the reforms do not negatively impact vulnerable, disabled or older people.'