Industry figures have raised concerns about proposals to reform Lasting Powers of Attorney, suggesting that the digitisation of the process opens to door to fraud and alienates the most vulnerable.
The consultation proposes to review how to
- increase safeguards, especially for the donor
- improve the process of making and registering an LPA for donors, attorneys and third parties
- achieve sustainability for OPG whilst keeping LPAs as affordable as possible for all people in society
Proposal include
- removing the need for a witness altogether;
- expanding the remit of the OPG to verify individuals and tighten up on the risk of fraud;
- when and how long people may object for;
- the need for an expedited service;
- and the potential to provide greater integration into legal case management systems.
Expressing her concern at the proposals within the consultation earlier this month, Law Society President I. Stephanie Boyce wrote:
“… the consultation fails to address how the proposals will work for those who cannot access a digital service; nor does it address the need to ensure that the role of the certificate provider works within a digital process as was intended when the Mental Capacity Act 2005 was passed.”
Chair of Solicitor for the Elderly, Michael Culver has also raised concerns that a more digital process could leave “vulnerable people… more open to the abuse of power and fraud.” I. Stephanie Boyce added that those without computers or digital skills had not been considered.
Ann Stanyer, Partner at Wedlake Bell, has said:
“The LPA consultation paper issued by the Ministry of Justice continues the theme of ‘digitisation by default’. For the Probate Registry and the Land Registry this may be appropriate; however, the OPG… should have at the forefront of its goals maintaining safeguards established in the Mental Capacity Act 2005.”
“To suggest that witnesses are superfluous and that their role could be replaced by digital signatures is shocking.”
“The paper’s Executive Summary suggests that ‘our preferred option is to replace the witness with new safeguards that perform the same function’. What possible safeguards would act in the same way as an independent witness?”
“A witness will be physically present at the time that the donor signs and can potentially provide evidence that there is no one else asserting influence, telling the donor to sign, or even signing in their place: it is difficult to see how a digital safeguard can do the same job. The witnessing proposal may suit a fully digital process.”
“Unfortunately for the OPG, elderly vulnerable clients who want LPAs do not neatly fit into a digital world.”
The Law Society has now formally responded to the consultation with I. Stephanie Boyce stressing in the response that any increase should reflect new and tangible improvements to the service including the introduction of clear minimum service standards.
“Court closures, the digitisation strategy and increased fees across various court jurisdictions have already produced savings and income for the court systems.
“… Any hike in fees now must reflect new and tangible improvements made to the service. At the very least, a commitment from the UK government that revenue from this increase will be used for probate service improvements.”
Read the response in full here: https://www.lawsociety.org.uk/campaigns/consultation-responses/aligning-the-fees-for-grants-of-probate-to-cost-recovery
The consultation closes on 13th October. If you would like to share your views, please respond online or on email mlpaconsultation@justice.gov.uk.
