The Ministry of Justice (“MOJ“) recently issued a consultation on modernising Lasting Powers of Attorney (“LPAs“). The stated goals are to increase safeguards and improve the process of making and registering an LPA for the person creating it (“the donor“); but some of the proposals are fairly radical in scope and, in our view, require further scrutiny. Wedlake Bell has responded to the consultation.
Removal of witnessing
The view of the MOJ is that many signatories to an LPA misunderstand the distinct roles of the witness and the “certificate provider (who certifies that the donor of the LPA misunderstands is freely entering into it). These roles were established by the Mental Capacity Act 2005 but many signatories assume the certificate provider is little more than a witness. The consultation questions whether there is still value in having a separate witness and offers three alternatives: firstly, removing the need for a witness altogether; secondly, remote witnessing using digital technology; thirdly, replacing witnessing with technology that performs a similar function (the MOJ’s preferred option).
It is noteworthy that powers of attorney have been deeds for many years. By law, a deed requires a witness. The Law Commission concluded in their 2019 report “Electronic execution of documents” that, for deeds, the witness’ presence should be physical, not virtual or remote. Wedlake Bell’s response to the consultation consequently emphasises the importance of retaining a witness who is physically present as an important safeguard – particularly for elderly or vulnerable signatories – against fraud and indue influence.
An LPA must be registered with the Office of the Public Guardian if it is going to be used once the donor has lost mental capacity. The consultation proposes that the creation and registration of an LPA be automated as far as possible and registration be initiated as soon as the document is executed. Our experience shows that delaying registration is a helpful safeguarding provision. We also strongly believe it is important that there remains an option for donors to sign their LPA on paper, in wet ink, rather than being compelled to create the LPA through digital channels that some elderly clients cannot fully understand or use.
Whilst the consultation is well-intentioned, modernisation should not come at the expense of safeguarding the interests of those the whole system is designed to protect.