England and Wales LPA reform proposals focus on role of witnesses

In July 2021, the ministry issued a consultation paper focusing mainly on the idea of creating and registering LPAs through a digital service, at the same time as improving protections against fraud and abuse. The Office of the Public Guardian (OPG), which administers the process in England and Wales, had already introduced a digital tool in 2013, but the final stages of the process, including signing, witnessing, attesting and delivering the LPA must currently be completed on paper.

The consultation drew more than 300 responses, with both STEP and the Law Society of England and Wales warning against any attempt to ‘water down’ the protections currently in place for LPAs. The requirement to have LPAs physically witnessed is seen by the government as limiting the speed and accessibility of the process, its view being that the protection against abuse comes not from the witness but from the certificate provider. However, all three of its suggested alternatives to witnessing – removing the requirement, allowing remote witnessing or replacing it with digital signatures – attracted criticism. There was particularly strong opposition to the idea that witnesses could be dispensed with or replaced with new safeguards performing the same function.

The government's final policy response appears to have taken many of these comments on board. Although it is insisting on the move to digital creation and registration of LPAs, it accepts that the current paper-based system should continue to operate for people who do not have internet access, computers or smartphones. However, the government intends to take powers to make online LPA applications compulsory for professionals at some future date, as it has done with its online divorce system.

The need for evidence of the execution of the LPA by the donor will be retained. The OPG will introduce new identification checks, requiring official documents or information such as a driving licence, passport or Government Gateway account. The LPA will continue to be treated as a deed, even if the witnessing requirements are changed.

Additional guidance and support will be provided to help certificate providers assess the donor's understanding of the LPA and protecting against fraud, abuse and undue pressure. Certificate providers will not, however, be required to be professionals.

The response also outlines ways to strengthen the process of objecting to the registration of an LPA, to protect against the risk that someone has been coerced into making an LPA. The OPG will act as a single triage system for anyone to raise an objection. Objections can then be referred to the Court of Protection if necessary. The government will also consider introducing a system that permits objections to be registered by a third party before the LPA process is even started.

However, the government does not intend to proceed with creating a special fast-track LPA service, despite concerns from STEP and others that the OPG's current levels of performance are inadequate. 'While STEP generally welcomes the modernisation of both probate and LPA applications, it does have concerns about the current extensive delays in registering LPAs', comments Claire van Overdijk TEP, Chair of STEP’s Mental Capacity Special Interest Group Steering Committee. There were significant delays when probate was moved online, she pointed out. 'If modernisation proposals are also implemented for LPAs, a significant backlog of applications will remain, which will take many months to process and will continue to cause distress for many elderly and vulnerable people and their families, at a time when this is most unwelcome and inconvenient.'

The government will continue to investigate whether technology can be used to replace the witness with a similar digital function. It will also look into whether the role of the certificate provider and the witness can be combined to authenticate execution of the LPA by the donor.

Sources

• Ministry of Justice (press statement)
• Ministry of Justice (final response, PDF)
• STEP (consultation response, PDF)
• Mental Capacity Law and Policy
• OPG
• Law Society
• STEP UK News 14 October 2021: Professional bodies insist on strong safeguards for LPAs in England and Wales