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Ministry of Justice Begin Consultation on LPA Reforms

Published: 30 July 2021

The Ministry of Justice (MoJ) have combined with the Office of the Public Guardian (OPG) to produce a consultation, aimed at providing the OPG with more power to prevent fraud during the registration of a Lasting Power of Attorney (LPA), and to revamp the LPA into a fully modernised online service.

They argue that the current version of the LPA is "cumbersome, bureaucratic and complex",1 using outdated paper-based forms in a computerised world.  By updating the service, the MoJ argue that the current service can be effectively streamlined, reducing wastepaper, whilst improving the safeguards for attorneys and donors alike throughout the process of registering their LPAs.2   

The Case for Change

The paper-based LPA is nearly 14 years old,3 having replaced the previous Enduring Power of Attorney that was in place between 1986 and 2007.  Overall, therefore, the LPA has existed in some manner for around 35 years.

With the paper-based LPA having been used for almost 14 years now, the MoJ are calling for changes to the system to bring it into modern times.  Their findings show that users of the forms find LPAs overly complex, and inaccessible to those with disabilities.  Combined with a waiting period of up to 20 weeks for full registration,4 there is a strong argument in favour of modernisation.

We shall investigate some of the key proposals of the MoJ, and how these could affect the current LPA process going forward.

The Key Ministry Proposals

Revamping the Witness Procedure

The MoJ have suggested that the witness procedure is removed, in favour of a fully automated online process.

Currently, the witness is present to ensure that the LPA is signed, nothing more.  The MoJ argue that this individual could in fact be made redundant, replaced with an automated verification system; this would recognise an individual's signature, location and other personal information, in-turn verifying that the person signing the form was the correct individual.

Whilst a promising option, this suggestion could spring open the proverbial can of worms concerning data protection and GDPR, so it remains to be seen whether this would be a viable option.

Who Can Apply?

Through analysing the registration process, the MoJ are seeking to digitally check all LPAs whilst they are being made, and are sent for registration immediately, without delay. 

The current process allows donors to sit on their LPA application for an undefined period, meaning that they might send their forms for registration at a much later date than when originally signed.  However, in the current climate, with such long delays for registering these documents, it risks the donor becoming incapacitated, and potentially unable to receive the help they needed – the whole reason behind the LPA in the first place.

Additionally, should the document be sent for registration with the OPG, and errors are found, this risks delaying the process even further.  The results are a dangerous waiting game for donors and attorneys alike.

The MoJ argue that the best way to combat this risk is for LPAs to be sent for registration immediately from execution, a process that would be made far easier via an online LPA document, rather than the current paper-based format.  Additionally, an online document could also include in-built reviewing programme, to ensure that the form has been completed correctly.5

By having such an automated and streamlined process in place, this reduces the risk of error and rejection at the OPG, and increases the likelihood of the LPA being available to both donor and attorney when they need it.  

Speed of Service

As previously mentioned, the current waiting period for LPA registration is around 20 weeks, due in part to the severe impact that the COVID-19 crisis has had on the OPG.

Ultimately, this delay can have a costly effect on those who urgently require their LPAs to be registered.6  The current system operates on a 'one size fits all' policy, meaning that urgent cases are not prioritised, meaning that even if a donor loses capacity, their attorneys will be unable to act until the delayed registration takes effect.7

However, whilst a 'prioritised service' sounds a promising concept, this may be difficult to enact in practice.  The MoJ indicate that an improved priority service would be accompanied by increased costs, and at a time when the MoJ themselves are also planning to up probate application fees to £273.00, this is a very concerning issue.8

Considering this, the MoJ's conclusion that the current system should remain in place to save costs to the applicant is an agreeable (if perhaps ironic) one to save further costs to the applicant.  This is clearly not an ideal outcome, and further consultation is necessary to reach a better result here.  

Final Thoughts

 The MoJ's LPA reform consultation is an indicator that a change is needed.  In a system that predates many law firms' online filing systems, the current process is outmoded, and in need of a revamp.  Whilst some of the MoJ's findings are positive, others are more questionable, such as an inability to prioritise an emergency LPA registration where necessary.

With that said, the MoJ is asking for feedback on their proposals.  They are offering a chance to voice your opinion on the matter, so that the wider public can have a say on the issues too.  If you want to read a little further, or voice your opinion, click on the following link:

mlpa-consultation-document.pdf

If you want to talk to us about further about arranging your own LPA, or for your own piece of mind, please contact Tim Dysterre-Clark  Andrea Gilman or Nosheen Tassaddiq.  Our power of attorney experts can help to advise and guide you through this process.  We can arrange appointments at our Derby, Spondon, or Alvaston offices, and we can also visit you at home for your convenience.

 

References

1 'Modernising Lasting Powers of Attorney', Ministry of Justice (July 2021) 5
2 Ibid 6
3 Ibid 12
4 'Coronavirus (COVID-19): Office of the Public Guardian response', GOV.UK (19 July 2021)  
5 Ibid [1] 27
6 Ibid [1] 49
7 Ibid
8 'Proposed rise in probate fees unjustifiable as users face long delays', The Law Society (9 July 2021)