Associate Olivia Llewellyn discusses the changes to making Lasting Powers of Attorney ahead of the introduction of The Powers of Attorney Act 2023, aiming to streamline and digitalise the current process.
The POA Act 2023
The world of Lasting Powers of Attorney (LPAs) is about to change, with The Powers of Attorney Act 2023 (the POA Act) about to shake up the existing system.
If you have made an LPA in the last few years, you will know that it can be a vigorous and onerous process which involves ensuring all of the parties sign the LPA in the correct order and without making any mistakes when signing, dating or witnessing the documents. It is also a lengthy process once the hard copy signed LPAs are sent to the Office of the Public Guardian (OPG) for registration; it usually takes around 20 weeks in order to register the documents and in some cases, it can take longer.
Throughout the registration process, the OPG issues letters to the donor (the person making the LPA) and to the attorneys and other relevant parties to notify them of the process. Often applications for both types of LPA for a couple, which were sent to the OPG at the same time, are split up during the registration process with the OPG issuing the letters at different times. This often causes confusion for those who are receiving letters, and concern that the other documents have been lost or are not being dealt with.
After a long consultation, the POA Act has been introduced and aims to modernise the process of making LPAs. The POA Act will digitalise the whole process of making, signing and finalising LPAs with the view to speed up registration time, enable checks on identity (with a view to prevent fraud) and to widen the group of people who are able to object to an LPA application if they have concerns. There will still be a paper option available for those who are not able to use the digital service.
Safeguards in the digitalisation of LPAs
The digital process will not be available for some time while the digital program is created and strenuously tested; it is of course of paramount importance that the new system cannot be abused, and the Government have said that they are committed to ensure that appropriate safeguards will be in place to make the digital process as safe and secure as possible – particularly to protect those who are vulnerable. We do not yet know how the identity checks and other safeguards will work in practice, and hope that there will be measures in place to ensure that a certificate provider has taken appropriate steps to verify that the donor has not made their LPA under duress, that they understand the implications of what they are doing and that they have the requisite mental capacity.
Olivia Llewellyn is the private client team, advising individuals, families and trustees on all aspects of private client work, including drafting wills, advising on estate planning and wealth protection, the preparation of lasting powers of attorney and the preparation and administration of trusts.
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