Should Lasting Powers of Attorney be digitalised?
Whether you prefer to use digital services, or have converted since COVID, the pandemic has pushed digitalisation into more areas with many organisations seeing it as a way to increase affordability (and cutting their own costs) as well as an extension of accessibility.
The government are currently consulting on digitalising the Lasting Power of Attorney (LPA) process. Their intention behind the digitalisation is to improve the process of making and registering LPAs and whilst it may be more convenient and user-friendly for some people, there are a number of downsides the government and future users of the service should take into account before proceeding.
It can only be a good thing that more people create LPAs. It would remove the requirement for an application to be made to the Court of Protection if they were to lose capacity and be unable to manage their affairs. Digitalising the service may be an incentive for some to create LPAs and have these in place should they be needed.
However, this increased accessibility carries with it many risks. For example, not everyone will understand the extent of the powers they will be granting which in a Health and Welfare LPA includes the option to grant your Attorneys the power to make end of life care decisions for you. Some may appoint only one attorney and not consider what would happen in the event the Attorney was to die or lose capacity before them. Those creating the LPA may also try and include guidance and instructions for their Attorneys which are not permitted under law such as asking their attorneys to assist with their suicide if they were to become very poorly in the future.
And of course, not everyone has internet access, especially those most vulnerable.
Risk of Fraud
Digitalisation brings with it greater risk of fraud and/or undue influence as the government has not suggested how it will evidence that the person the LPA relates to has created it themselves or that it has been prepared with their knowledge. Currently the LPA process requires someone who has known the LPA creator for at least 2 years or a legal or medical professional to sign and confirm that the person entering into the LPA understands the nature and effect of the LPA and is not under any undue pressure to create it.
The governing body for LPAs (the Office of the Public Guardian) has reported that in recent years there has been an increase in the number of safeguarding concerns raised about abuses of power by attorneys. If the system becomes digitalised and there are no checks in place to ensure the Donor is aware that the LPA has been created or indeed has the capacity to create the LPA , the risk of potential abuse could become much higher.
Modernising the System
Overall, changes to the process of creating an LPA are welcomed to shorten which is currently a very lengthy process. However, we think a system which allows LPA creators to make changes to their registered LPAs (such as changing Attorneys) should be implemented first. However, if the service is to go online, greater safeguarding measures have to be in place to protect those the LPA relates to.
What can you do?
If you’re concerned about any of the above there are a few things you can do.
- Make your LPA now before the system may be digitalised
- Seek professional advice, even if you are intending to create the LPA yourself.
Do talk to us at Griffith Smith. We have experts who understand the ins and outs of making and registering an LPA and can offer guidance. Call Jade Paine on 01273 384 041 or email firstname.lastname@example.org