Should Lasting Powers of Attorney be Purely Digital?

A twelve week consultation between the Ministry of Justice and the Office of the Public Guardian into making it easier to obtain a Lasting Power of Attorney (“LPA”) ended on 13 October 2021.

The consultation followed claims that the current paper based system is “cumbersome, bureaucratic and complex” and included consultation on moving to a mostly digital service.

Stephanie Boyce, Law Society president said she supports the government’s aim, but has “areas of genuine concern”.

Currently, the LPA process contains a number of important safeguards when the document is being drawn up. This includes the need for an independent person (known as the certificate provider) to form an opinion that the person drawing up the LPA knows what they are signing. This function is often carried out by a doctor or lawyer.

Once the LPA has been registered there is time for any other person to raise a concern about the LPA being registered and when necessary, the Court of Protection can step in and decide the LPA should not be registered.

Stephanie Boyce also said: “Our overreaching concern is that the consultation fails to address how the proposals will work for those who cannot access digital services, nor does it address the need to ensure that the role of the certificate provider works within a digital process as was intended when the Mental Capacity Act 2005 was passed.”

She went on to say that: “the consultation does not explain how the new proposals will impact on paper channels for LPAs. Many people  - such as those in care homes or people with learning difficulties  - will need to make an LPA via a paper process and the digital service which currently exists is complicated and hard to use, even for those digitally literate”

The Law Society stressed that that LPAs are: “arguably one of the most important legal documents that a person will make” and said that LPAs give “sweeping powers” over life decisions when an individual’s mental capacity is lost. 

The Law Society concluded by stating: “we want to make sure these safeguards are not put at risk due to the Ministry of Justice and Office of the Public Guardian’s consultation, which seeks to simplify the process, to keep LPAs affordable, and to move to a predominately digital service”.

We cannot see how it can be possible to get rid of LPAs on paper, either now or for a very long time in the future. We believe that whilst the digital system may be simplified and extended, the safeguards in place for paper LPAs will continue to mean that they are preferred by legal practitioners and clients alike. 

At Samuels Solicitors LLP, we have been helping people put a Lasting Power of Attorney in place for a very long time. We understand the importance of these documents, and the comfort they can bring, knowing that you have planning for every eventuality. We have a vast deal of experience helping people who might struggle to deal with digital services. We have the experts on hand to help you through every step of the process. 

If you or a loved one want to speak to someone about drawing up a Lasting Power of Attorney in place, contact one of our private client team who will be happy to discus the matter further with you.