Lasting Powers of Attorney: Consultation

Robert Buckland Excerpts

Tuesday 20th July 2021 Written Statements

[The Lord Chancellor and Secretary of State for Justice (Robert Buckland)]

Today I am launching a public consultation on modernising lasting powers of attorney.

There are things we take for granted until we no longer have them—our ability to make decisions, our ability to express ourselves, our ability to choose. The Mental Capacity Act 2005 (MCA) led to the implementation of lasting powers of attorney (LPA) in 2007. An LPA gives people the opportunity to appoint someone they trust to make decisions on their behalf, in the event those abilities are taken from them, whether through accident, disease or illness.

The MCA also created the Office of the Public Guardian (OPG), an executive agency of the Ministry of Justice. The OPG is responsible for registering LPAs. This must be done before an LPA can be used. The OPG is also responsible for taking action where there are concerns about an attorney’s use of the LPA.

When the LPA was introduced in 2007, the safeguards put in place were appropriate for the time, but technology and society have moved on. Society’s attitudes to fraud and abuse, and the expected protections against them, have also changed. Technology now offers new ways for the OPG to protect its users through identity and information verification.

An LPA must be printed out so that it can be signed and witnessed on paper, no matter how the LPA documentation is completed. In the 14 years since LPAs were introduced, technology has advanced and become more widely available. People increasingly expect to be able to access Government services online and many donors and attorneys have told us the paper-based LPA is cumbersome, bureaucratic and complex.

Due to LPAs being paper-based, the OPG is required to handle a large amount of paper, which is costly and inefficient for the organisation, creating an ever-increasing need for staff, equipment and storage. The OPG’s operating costs are funded entirely by the income from the fees it charges. If the LPA service is not made more efficient, either fees will have to increase or the way the OPG is funded will become unsustainable.

We need to respond to these challenges and look at how technology can make it easier for people to make and register an LPA. We must also fully consider concerns about security—finding the right balance between ease of use and protection against abuse. Ease of access and protections must also be ensured for those who cannot use digital services or do not want to.

We believe that a move towards automating the OPG’s services will improve efficiency and reduce costs. It will also allow resources to be moved to improving other OPG services that provide more benefits for users.

It is for these reasons that I am launching this consultation on modernising lasting powers of attorney—to consider how to increase safeguards, while ensuring accessibility and OPG sustainability, and any changes to primary legislation that may be needed to facilitate this.

To develop the proposals put forward in this consultation, we have undertaken user research, interviews and surveys to gather the views of the public and professionals. We have engaged stakeholders from a range of sectors, including finance, legal, charity and social care. We now want to gather evidence from a much wider group and are asking for views on the following:

The role and value of witnessing on LPAs and how to keep that value.

The role of applying to register an LPA and who can apply.

Changes that may be needed to the OPG’s remit.

Changes to how people can object to the registration of an LPA.

Changes to when people can object.

The speed of the LPA service and whether a dedicated faster service should be introduced for people who need an LPA urgently.

How to ensure that solicitors have access to the service.

The consultation is available in full at: https://consult.justice.gov.uk/opg/modernising-lasting-powers-of-attorney and a copy has been presented to Parliament.

[HCWS209]