The Office of the Public
Guardian has announced plans for the process of applying for LPAs to go online.
The proposals are open for consultation until the 19th October 2012.
Lasting Powers of Attorney
(LPAs) exist to allow a person to appoint someone that they trust as an
“attorney” to make decisions on their behalf when they no longer wish to or
when they lack the mental capacity to do so.
The LPA allows a person to
plan which decisions they wish the attorney to make and how they wish the
attorney to make the decisions, for example in conjunction with a second
attorney or alone.
The decisions that may be
made by an attorney may relate to a person’s health or wellbeing (such as
decisions on medical treatment etc.) or may concern property or financial
affairs (such as paying bills, selling your home etc.)
It provides an attorney with
a significant ability to take decisions on behalf of the donor and it follows,
therefore, that some considerable thought should be given when executing an
LPA.
Currently, when an LPA is
prepared by a Solicitor, they are able to discuss face to face with the donor
their personal circumstances and work through the possible issues that they may
face in the future. The Solicitor will have experience of various different
situations that might arise, which the donor may not even have thought of. How
is this level of consideration to be ensured with an online application?
There are also a number of
elements needed to ensure that the LPA is effective, for example someone must
provide a “certificate” confirming that the donor understands the significance
and purpose of the LPA and the signature of the donor and their attorneys must
be witnessed.
If the application is to be
made online what checks are there to be as regards the “certificate”? How will
we ensure that the certificate provider is genuine, that they have properly
discussed issues with the donor and that the donor understands the gravity or
purpose of the process? This could leave the process wholly open to fraud and
abuse/influence – even more of a risk as we are often talking about elderly or
vulnerable people needing LPAs.
In addition, the donor must
have capacity at the time that the LPA is registered for it to be valid. At
present, a Solicitor meeting the donor alone is placed to assess whether the
donor has capacity to execute the document. Who is to check the issue of
capacity if the process is to be automated and digital? This is of serious
concern and, again, leaves the process open to abuse and fraud.
Finally, it is proposed that
basic information about people who are subject to Lasting Powers of Attorney
will be available online, protected only by a password – some real concerns
about confidentiality arise.
The above is combined with a
real concern as regards whether any IT system will be fit for purpose. Our own
concerns arise here, having had to deal before now with government departments
developing online processes, only to find that the system is inadequate or
insufficient resources have been focused.
Generally, it is to be
accepted that times move on and online/digital processes can speed matters up.
However, it is absolutely vital when we are dealing with protection for the
elderly or vulnerable that everything is done to limit the possibility of fraud
or abuse.
On the proposals as they
stand, there must be concern as to how the process will ensure proper
protection.
Norman Snowball - Head of Wills & Probate.
