Technology, Legal Service Access And The Impact On Vulnerable People

In recent years, legal technology has grown exponentially with AI integrations, automated services, fully online legal services and the increase in electronic signatures changing the way consumers receive legal services.

Whilst technology is widening the access of legal services, how safe is this digital migration for vulnerable people?

A Solicitors for the Elderly (SFE) led coalition of organisations has long campaigned against the dilution of legal service providers in the creation of vital documents citing the increased risk of fraud, increased application fees and the threat of being left with a legal document which will not be effective.

In May, the Office for the Public Guardian (OPG) released their safeguarding strategy that will be implemented until 2025. Embedded within point 5 of the document entitled ‘Greater support for our users,’ the OPG claim that they will improve their online services and ‘look for ways to make applying to register an LPA a fully online service to make it easier for our users.’

Currently, when using the OPG’s online provision, a donor is able to make, edit and amend an LPA application online. However, the document can only be officially registered by submitting a hard copy with a ‘wet signature’ provided by the attorneys, witnesses and official certificate provider who can confirm the donor is making the LPA by choice and with a clear understanding.

Whilst this may be the only sure way of protecting the donor from abuse, the OPG remain concerned that this system is slow, inefficient and could become a barrier to more people using such a vital service.

The OPG has floated the possibility of a totally online system, which would remove the need for a physical signature. Whilst the movement toward technology has largely been embraced in terms of speed and convenience, the main concerns stem from the risk of fraud and being able to ascertain that the contents of the LPA truly reflects the wishes of the individual concerned.

Recently, the Law Commission confirmed that electronic signatures can be used in most cases, including where there is a statutory requirement for a signature. This is not the case where the law or a relevant contract makes separate rules about a specific document or type of document (as the Law Commission has concluded is probably the case for wills).

Whilst businesses have been using electronic signatures for some time, many people have questioned the validity of an electronic signature in certain situations. Many have been concerned about vulnerable people being put at greater risk because of the perceived ease of committing fraud through electronic signatures.

Heledd Wyn, Solicitor, TEP and trustee of BRACE (Alzheimer’s Research), has taken the time to consider the dangers technology can create for vulnerable people and the potential considerations that need to be made before technology, used to access legal services, is increased.

What potential issues would a fully automated LPA process create?

While I understand that being able to create Powers of Attorney quickly has its benefits, they are very important and powerful documents that need to be carefully considered – especially when deciding who should be appointed as an attorney.  Automation may well mean that the person who is creating the LPA is not the donor, rather it is being prepared on their behalf and this means that there is potential for fraud and abuse.

Why could the proliferation of electronic signatures present problems for vulnerable people?

Verifying the signature of an individual using a traditional ‘wet ink’ signature which is witnessed is preferable to an electronic signature which may not need a witness. How will it be possible to tell that the person who has digitally signed a document is in fact the donor? What check and balance will there be for those who are vulnerable ‘sign’ a power of attorney in favour of someone else who will then be able to make life changing decisions on their behalf?

What safeguards need to be put in place before online legal services and applications can be considered safe?

For those with passports and driving licences, perhaps cross-checking the signatures against those held centrally by the government on these documents might be an idea? For those who do not have this type of document, then electronic signatures may not be appropriate until some form of cross-check is introduced. It is crucial to remember that the donor is the person who is granting the power of attorney – not the attorney setting it up for the donor and my fear is that moving towards digital signatures will simply make the opportunities for  potential fraud and abuse too great.

What safeguards need putting in place to ensure digital, automated digital legal services are safe to access by all users?