The Powers of Attorney Act 2023 has received Royal Assent – Its aim? To make Lasting Powers of Attorney quicker, easier to access and more secure.

Please note that this News item is not maintained, and reflects the law as at the date of publication or update.

What are Lasting Powers of Attorney?

A Lasting Power of Attorney (LPA) is a legal document that enables you (the donor) to nominate someone (an attorney) who will make important decisions on your behalf if you ever lose the mental capacity to make those decisions yourself. Your attorney will usually be a relative, a trusted friend or a solicitor and you may appoint several attorneys. Crucially, you can only make an LPA whilst you still have mental capacity.

There are two types of Lasting Power of Attorney

1. Property and Financial Affairs – This enables your attorney to assist with selling property, managing bank accounts, paying bills and making investments on your behalf. This type of LPA can be used before or after you lose mental capacity.

2. Health and Welfare – This enables your attorney to make decisions over your day-to-day healthcare and medical treatment and deal with any health or social care staff. This type of LPA can only be used after you have lost mental capacity.

Both documents must be registered with the Office of the Public Guardian (OPG) before they can be used.

Why is the process moving online?

The number of Lasting Powers of Attorney has increased rapidly in recent years to over 6 million.

Currently LPAs can only be made by paper application, which means that the OPG are dealing with approximately 19 million pieces of paper each year.

LPAs are taking up to 20 weeks to be registered. Making the process digital should speed up processing times, by picking up errors early and allowing mistakes to be corrected online, rather than having to wait for documents to be posted back and forth between the applicant and the OPG.

What is changing?

There will still be the two types of LPA, but the Act will bring the existing paper-based process online for the first time. Regulations will be brought in to allow parts of the LPA to be signed electronically, subject to certain safeguards.

The Act also introduces an improved paper process for those unable to use the internet.

How will it work?

Although the regulations will provide the detail, it is anticipated that online LPAs will consist of three separate forms.

Form 1 – The donor

The donor (or their legal representative) will set up an online account with 2 factor authentication. The donor (or their legal representative) will complete Form 1. This will include the donor’s details, who will be their certificate provider and who will be their attorney(s). The donor will be required to pay the necessary fee at this stage. It will no longer be possible for an attorney to register the LPAs.

Form 2 – The Certificate Provider

A certificate provider is a person the donor must select to complete a certificate on the LPAs. The certificate provider must confirm that the donor understands the LPAs and that the donor is not under any pressure to make them. The certificate provider is an important safeguard.

The certificate provider will be required to provide their identification, review Form 1 and sign Form 2. The certificate provider will be able to sign the form, either online by ticking a box, or by signing a paper form.

Form 3 – The attorneys

The attorney(s) will be sent the forms to review and they will also be able to sign the form either online by ticking a box, or by signing a paper form.

Isn’t it already possible to make LPAs online?

Although the move to speed up the process is very welcome, it is already possible to prepare LPAs online. However, with the current online system, it is still necessary to print the LPAs sign and submit to the OPG for registration. The new system will change this.

The main drawbacks to the current online system is the lack of advice provided and the fact it is easy for applicants to have LPAs which do not really meet their needs. The new digital LPAs will not change this, and our recommendation remains that professional advice should be obtained on the process.

When will the changes come into force?

Although it received Royal Assent on 18 September 2023, it is not yet known when these changes will come into force. There is speculation that they could be introduced in autumn 2024.

However, before the system goes live, extensive testing will need to be carried out to ensure that the process is simple, works as intended and is secure. In the meantime, the current paper based LPAs are still in operation.

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