Transforming the OPG

01 May 2013 Alan Eccles

Transforming the OPG

Alan Eccles on the introduction of the digital LPA

The Mental Capacity Act 2005 (MCA 2005) was a forward-thinking piece of legislation that sought to combine a progressive social vision with legislative safeguards. It laid out principles that empowered and protected people who lack mental capacity, putting them at the heart of the decision-making process, while ensuring that any decisions made on their behalf were in their best interests.

The Public Guardian

The MCA 2005 created the statutory role of Public Guardian, and I have held this challenging and rewarding position since April last year. The Office of the Public Guardian (OPG) supports me in fulfilling my duties of registering enduring powers of attorney and lasting powers of attorney (LPAs), and supervising Court of Protection deputyships. OPG has been working hard to fulfil the vision of the MCA 2005, and we’ve been succeeding, as the year’s statistics attest. Waiting times for the registration of LPAs have hugely reduced, investigations are concluded faster and complaints are down.

However, there is still much to be done to maintain this forward momentum. We at OPG wish to ensure that everyone has adequate safeguards in place to protect them against any future loss of capacity. We want as many people as possible to consider making an LPA well before they reach a moment of crisis. There will be five million more over-65s in the UK in 20 years’ time. Managing the consequences of this demographic shift towards an older population is an important part of OPG’s work.

Where LPAs have not been put in place in advance, we want to support court-appointed deputies who need assistance and make their interactions with us as smooth as possible. At the same time, we must be absolutely sure that we have adequate oversight to allow us to take prompt action when necessary to protect the people deputies represent.

Challenges

To an extent, we’re succeeding in these aims – there is, for instance, a 20 per cent rise year-on-year in applications to register an LPA. However, this success has brought its own problems for OPG. Our staff are working incredibly hard, but we’re limited to paper-based processes and legacy IT systems that slow everything down and are, quite simply, at maximum capacity. Currently, a sudden rush to register LPAs could lead to an intolerable spike in waiting periods. Therefore, unless we change these systems, we cannot provide the service expected of us.

Hence the programme of transformation at OPG. It is not change for the sake of change; rather it is intended to provide better services for everyone who comes under the aegis of the MCA 2005 – deputies and clients, attorneys and donors.

The plan is twofold: we want to move more of our business to digital channels and we want to replace the office systems that are constraining the process. We’ve been working closely with the Government Digital Service to get the changes under way and make everyone’s experience with OPG simpler, clearer and faster.

Digital LPA tool

Later this spring we will take one of the first big steps in the transformation of the OPG and launch a digital LPA tool. It is designed to be a secure, straightforward and reliable way to make an LPA, both for members of the public and for legal professionals. It has been built to deal with the logic of the LPA instrument and guides the applicant through the relevant sections after they have made initial decisions about such things as the number of attorneys they need and how their attorneys should act for them. It incorporates sophisticated internal checks for address, phone number and date of birth formatting and consistency that will drastically reduce the number of mistakes that can creep into LPAs. Its user-friendliness was universally praised during initial testing, as was the clarity of its guidance.

The new tool is built for stability and security, and has been heavily and repeatedly tested. Some practitioners tried earlier versions and we have listened to their feedback, taking particular note of questions about workflow. In response we’ve made a version in which the internal code – the part dealing with logic and validation – has been split from the front-end. Office systems can use this internal engine via an application programme interface, so it can be reconfigured or repackaged to suit office systems.

We’re confident that the technical side is impressive; we’re also confident that the new tool has strong safeguards in place. While we may aspire to be digital by default, and do want to encourage more people to secure their future through this channel, it doesn’t mean we’re cutting our safeguards and it doesn’t mean that we’re getting rid of paper LPAs. In fact, we are looking at ways to improve and simplify the printed forms and guidance so that, again, more people can put provisions in place through traditional channels.

The tool may not be perfect yet, but we’ll be continuing to develop it. Feedback from practitioners will help us to improve our service and better meet their needs.

Improving services

Following the digital LPA tool, the next stage in OPG’s transformation is to improve services for deputies. As part of this, we want to move from a one-size-fits-all approach to a more tailored model recognising, for instance, that a professional deputy may have different needs from a lay deputy. We’d like to develop new products and find ways of adapting supervision regimes to reflect these differences. We also need to make sure there are adequate safeguards to ensure that deputies are acting in the best interests of those they care for.

Finally, we’re dealing with the back-office bottlenecks. We’re in discussion with the market about these systems and plan to have the new ones in place between April and September 2014. They’ll be commissioned with the digital tool in mind, since it will be able to supply well-formatted, consistent information, wiping out several sources of error and delay.

Having a resilient, flexible, high-capacity infrastructure will make a huge difference to OPG. If we can process more applications, we can take a more active approach to publicising LPAs. This will allow us to fulfil our mission and realise the original vision of the MCA 2005: making sure safeguards are in place for some of the most vulnerable people in society, while helping them to have the fullest input in the decisions that are made on their behalf.

Changes at the OPG: a practitioner’s perspective

About the author: Alex Elphinston TEP is a Senior Associate at Anthony Collins Solicitors LLP.

The launch of the digital LPA tool should help us all. Any steps that will help avoid errors in completion of the paperwork are welcome. Hopefully, this will help save time and cost for all concerned.

A checklist to avoid the risk of any schoolboy howlers could be useful – e.g. has the donor correctly completed Option A or B on the health and welfare power of attorney; have all appropriate signatures been witnessed; has the form been correctly dated?

In my experience the OPG has been lenient when dealing with some errors that have cropped up in the paperwork, while other errors have been deemed irreversible and required the whole form-filling process to be started again. I must say that I still find it strange that the OPG takes such a relaxed approach to a legal document, in effect allowing certain pages to be recompleted. Its approach is in stark contrast to the way that the Probate Registry treats wills, for example.

Another change that was introduced in April was the reduction in the time limits within which a notifiable person under an LPA can raise objections where an application has been made to register an LPA. This acts as one of the safeguards referred to in the Public Guardian’s article. It is interesting to note that so few objections have been raised by a notifiable person. While the principle appears sound, perhaps the practice demonstrates that this aspect could be dispensed with altogether? Nominating someone is often a problem for people with small families. If removed, it would speed up the registration process with little downside to the procedure. This is especially the case where a politician has been nominated or the named person dies before a registration application.

Part of the consultation looked at the possibility of linking the power of attorney document and the registration forms, so information would be taken automatically from the LPA and transferred to the registration form. That would certainly be welcome as a way of limiting the possibility of the incorrect transcription of information from one form to another.

The OPG mentions that it is dealing with ‘back-office bottlenecks’. From my point of view an interesting outcome of this has been the sudden appearance of LPAs, often submitted many months ago, that were perhaps lost in a drawer or cupboard.

The review of services to deputies is welcome. There has been some tinkering, but the supervision in particular has been low-key and does not appear to reflect the specific issues of each case. It would be helpful, for example, if case workers could be allocated to particular cases so that there was continuity.

The changes should benefit all of us – the OPG, the client and practitioners. As my school report might have said, ‘Keep up the good work!’

Authors

Alan Eccles

CPD Reflective Learning