FAQs: The Powers of Attorney Act

1. What does the Powers of Attorney Act mean in practice?
2. Will I or my relative be able to make Lasting Powers of Attorney online?
3. What issues could potentially arise from making the Lasting Power of Attorney process digital?
4. Are there any new safeguards for people making Lasting Powers of Attorney online?
5. How long does a lasting power of attorney last?
6. Are there any changes to the process for registering a Lasting Power of Attorney?
7. Why does the Act change the LPA registration process?
8. What doesn’t the Act do?

What does the Powers of Attorney Act mean in practice?

Following a public consultation in 2021 to modernise Lasting Powers of Attorney (LPA), the new Powers of Attorney Act came into force on 18 November 2023.

Various areas of the LPA process were overhauled by this new Act, including the creating and registration of LPAs, the notification process, the requirement to ID donors, how to object to LPAs and the certifying of LPAs by Chartered Legal Executives.

Will I or my relative be able to make Lasting Powers of Attorney online?

Some parts of the LPA application process have been available online since 2015, and the system was comprehensively overhauled and modernised in 2020, but the execution of the LPA involved hard copies being posted to the Office of the Public Guardian (OPG). Once the new online system is implemented this will be the first time that the entire process will be able to be completed without the need for any paper documents or ink signatures.

What issues could potentially arise from making the Lasting Power of Attorney process digital?

In the period from 2020 to the present day, approximately one third of LPA applications are made through the online portal, and it seems likely that this will further increase once the new system is rolled out.

Whilst this will no doubt help with identifying errors early on and mitigate the risk of losing the LPAs in the post, many of those people who need to make the LPAs (the Donor) in order to appoint an Attorney to help them may not have the capability to use technology, and if they do they may struggle with access to it. This raises a concern that there could be a level of coercion exerted into making LPAs under the guise of “help”. It is important that paper access to create LPAs is retained.

Are there any new safeguards for people making Lasting Powers of Attorney online?

A further change on the creating and registering side is that the OPG will take over notifying those who have been named as ‘people to be told’ on the LPA. Anyone who has a valid concern will have the opportunity to raise this with the OPG at this stage. Of course, if the Donor decided not to notify anyone then this safeguard is lost.

Identity checks will also need to be carried out on those applying to register an LPA.

How long does a lasting power of attorney last?

An LPA needs to be registered before it can be used. It will last for the Donor’s lifetime unless the Donor decides to revoke it, the Attorneys disclaim their appointment or are removed by the Court of Protection.

Are there any changes to the process for registering a Lasting Power of Attorney?

Under the new Act, donors will have to register the LPA themselves, and Attorneys will no longer be able to register LPAs on behalf of the donor. This means that the LPA should be registered as soon as it is made, while the donor still has mental capacity.

Some donors might not want immediate registration, either because they don’t want the Attorney appointment to be “activated” immediately, or they want the flexibility of being able to change their mind about who to appoint and make a new LPA before they need to register it.

We may see an uptick in Donors selecting the box which only allows the LPAs to be used after the Donor has lost mental capacity in order to stop Attorneys from acting earlier on, but this could have a knock on effect if the LPA is needed because of physical health issues rather than mental capacity issues.

Why does the Act change the LPA registration process?

Whilst the requirement to register the LPAs immediately will of course flag up errors and problems at an early stage and allow these to be rectified, the issue of potential abuse is also raised if the LPAs are activated and used by the Attorneys earlier than they need to be. Another concern is that donors could leave the making of the LPAs to a later stage, whereby their capacity may be questionable and could result in the LPAs not being able to be made or being challenged on the basis of capacity concerns.

What doesn’t the Act do?

What the Act doesn’t seem to address is any safeguards associated with the role of Certificate Provider. Older versions of the LPA forms spelled out the Certificate Provider’s role and prompted them to consider the capacity and capability of the Donor to make the LPA, ensuring that the process was free of coercion. A professional Certificate Provider was also required to list their qualifications and experience. The more relaxed approach to the Certificate Provider means that anyone can fulfil this function, and if the LPA is being created through coercion the absence of an independent professional may make this harder to spot. This could later result in financial abuse.

For expert advice on making a Lasting Power of Attorney, contact our Community Care Law team on 01273 609911, or email info@ms-solicitors.co.uk.