Wedlake Bell responds to Consultation on Electronic Execution of Documents

26 / 11 / 2018

The Law Commission published its consultation paper “Electronic Execution of Documents” (“the Consultation Paper“) on 21 August 2018. The objective behind the Consultation Paper was to consider whether there are problems with the law around the electronic execution of documents and deeds which are inhibiting the use of electronic documents by commercial parties and consumers. As the law currently stands, the legal validity of electronic signatures for documents and deeds is in doubt and security and reliability are also issues.

The provisional view put forward by the Law Commission in the Consultation Paper is that a combination of EU law, domestic legislation and case law means that an electronic signature is capable of legally fulfilling the requirement of a signature if the relevant authenticating intention can be demonstrated. However, the Law Commission invited comments on this and related questions.

Wedlake Bell’s Private Client team have responded to the Consultation Paper in relation to the impact on legal documents signed by elderly and/ or vulnerable people. The most important of these documents is often a Lasting Power of Attorney (“LPA“) that an individual uses to delegate authority to chosen family or friends on certain decisions (covering their property and financial affairs and/ or their health and welfare) in the event that they lose mental capacity.

You can view the response here. The response agrees with the Law Commission’s proposal that where specific provision is necessary in relation to certain types of documents to protect vulnerable parties, this is a matter for specific legislation or regulation, and not for the general law of execution of documents. The Office of the Public Guardian is already looking at the digitisation of LPAs and we believe this project should be taken forward by them as and when adequate technology exists to protect the needs of vulnerable individuals and guard against the risks of fraud and abuse. The response discusses those risks and emphasises that at present a wet signature is the only conclusive way of evidencing an individual’s identity and true intention to execute an LPA.

We will be following the consultation process with interest in relation to this issue in particular, and will keep our clients updated on developments.

Please contact Ann Stanyer, Partner in the Private Client, for further information on making an LPA on any of the issues raised in this article. Ann is a specialist in the area of mental capacity work, a professional attorney for many clients and an advocate for action in respect of the financial abuse of vulnerable people. She is author of  “Financial Abuse of Older Clients: Law, Practice and Prevention” (Bloomsbury, 2017), a member of Solicitors for the Elderly and has had regular press coverage writing on and raising awareness of this important issue.