England and Wales LPA reform Bill published in preparation for parliamentary debate

The Powers of Attorney Bill will allow regulations to provide for making an LPA digitally or on paper, or by a mixture of the two. The Ministry of Justice drafted the explanatory notes to the Bill, stating that it will amend the Mental Capacity Act 2005 and provide for secondary legislation to change the regulations on LPAs.

As well as authorising digital and mixed digital/paper LPAs, the changes will provide for regulations setting out the required identity checks and ensure that only the donor can apply to register the LPA. The Office of the Public Guardian (OPG) will check a person's identification and provide detail on who needs to verify their identity, what documents will be accepted and how they will be checked. Regulations could apply to any person named in the LPA or taking part in the process of applying to register the LPA, which includes the donor, certificate provider, attorneys and replacement attorneys. If the requirements for identification checks are not met, the OPG cannot register the LPA and the application will have to be referred to the England and Wales Court of Protection.

The OPG will also have to notify the parties when an application to register an LPA is complete and the registration process is starting and operate a triage system for certain types of objection. The group of people who can lodge an objection will be widened to include third parties not named in the LPA. The Bill will also allow new forms of evidence of the LPA to be created and accepted and for the electronic form of the LPA as registered to be evidence of the LPA.

The Bill will further amend s.3 of the Powers of Attorney Act 1971 to enable chartered legal executives to certify copies of powers of attorney. Currently, certified copies can be signed only by the donor, a solicitor, a notary or a stockbroker.

'Parliamentarians will no doubt wish to scrutinise the bill carefully', commented Alex Ruck Keene TEP, Barrister at 39 Essex Chambers. He noted that the Ministry of Justice did not take on board some responses to its public consultation in 2021, including the Law Society of England and Wales', which urged that certification should expressly include consideration of the donor's capacity.

Sources

• Mental Capacity Law and Policy
• UK parliament (progress of Bill)
• Text of Bill (PDF)
• UK parliament (explanatory notes, PDF)
• STEP UK News 23 May 2022: England and Wales LPA reform proposals focus on role of witnesses
• STEP (consultation response, PDF)