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Government yields on electronic LPAs

Tuesday, 26 August, 2014

The Ministry of Justice has postponed plans to introduce a fully electronic online process for the creation and registration of lasting powers of attorney in England and Wales.

The plans were first announced three years ago by the Office of the Public Guardian (OPG), and set out in its so-called digital transformation strategy in 2012. A strong motivation was the long delays being experienced by applicants for LPAs, for which public demand has risen steadily ever since they were introduced in 2007. Applicants complained that the forms were much too long and complicated and it was too easy to make mistakes.

Some of these problems were addressed by the launch of a partial online system in July 2013. This allows applicants to fill in their forms online and have them checked immediately by the OPG’s software. Once verified as error-free, though, the form has to be printed out as a paper copy and signed by the donor and witnesses – a so-called ‘wet signature’, since fully electronic signature technology is not yet sanctioned in English law. The paper form has of course to be posted to the OPG. A similar partial online system had already been operating in Scotland since 2012.

The next step was to be a fully online application and registration system, similar to the on-line self-assessment income tax return system that has been successfully introduced by HM Revenue & Customs. However, many professional bodies have objected to this idea, because of the security risks and the serious consequences for vulnerable people that could be caused by forgery of an LPA.

So in October last year the Ministry of Justice launched a public consultation setting out the changes in the law that would be necessary if a fully online LPA system were to be implemented in England and Wales. This would involve either recognising digital signatures, or altering the status of powers of attorney so that they are no longer deeds that must be signed and witnessed, or some combination of the two.

This too provoked serious concerns from professional bodies, including the Law Society and STEP. Most responses emphasised the increased risk of fraud and undue pressure, and insisted that the 'wet signature' system is probably still the best way of establishing the donor's identity and intention, though not perfect. Moreover, there is a continuing concern that some elderly people without internet access would be disadvantaged by a fully digital system.

Justice minister Simon Hughes has now accepted these criticisms and postponed the deployment of a fully digital LPA for the near future. Though the ministry continues to believe that ‘a fully digital LPA will provide benefits for donors’, it has promised to consult again before bringing forward any further plans.

Other suggestions for reform of the system have also been dropped. The two types of LPA forms – one for health and welfare and one for property and finance – are not to be combined after all. The requirement for a signature and witness for the life-sustaining treatment section will be retained, as will the need for an independent witness to sections of the LPA, and a third-party certification that the donor has capacity.

However, some simplifications and improvements will be made. In particular, the forms will be redesigned to invite the donor to make explicit when the power is to come into effect - whether immediately on registration or only when the donor has lost capacity. At the moment this is often not clearly stated.

Sources