Changes following the Powers of Attorney Act 2023

Changes to the Lasting Power of Attorney (‘LPA’) registration system have been approved after the Powers of Attorney Act 2023 received Royal Assent last month. It is hoped that a new digital system will improve processing times for applications to register LPAs, but safeguards are needed to ensure that vulnerable adults are protected from fraud and abuse.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (‘LPA’) is a legal document that enables an individual to appoint someone they trust, such as a family member, to make important decisions about their property and finances or to make health and welfare decisions on their behalf should they be unable to make these decisions due to the loss of mental capacity.

There are two types of LPA; one is to appoint attorney(s) for property and financial affairs, and the other for health and care decisions. Individuals can choose to do either or both types of LPA, although they are equally important.

Once complete, Attorneys can make decisions on an individuals’ behalf if they lose the mental capacity to do so for themselves. The Attorney must always act in the best interests of the ‘donor’ (the person who created the LPA).

What is the LPA registration process?

Until recently, all Lasting Power of Attorney applications had to be sent by post, on paper, to the Office of the Public Guardian for registration. Despite a target of 8 weeks, LPA registration is currently taking up to 20 weeks from the date the Office of the Public Guardian receive the documents, creating a significant delay for those wanting to assist their loved ones.

What changes will be introduced?

The Power of Attorney Act 2023 aims to modernise the process for making and registering Lasting Powers of Attorney. The Act paves the way for digitalisation of the application system, allowing for a more streamlined process. It will also introduce the requirement to verify identity as part of the application process, and streamline the process for people to raise objections.

The Power of Attorney Act gives legal effect to the following changes:

1. Provide different ways to make and register an LPA, either digitally or on paper, or a combination of the two.
2. Ensure that only the donor can apply to register their own LPA (currently an Attorney can apply to register an LPA, whether or not the donor has lost capacity)
3. Introduce identity verification requirements that must be met for an application to register an LPA to be accepted.
4. Require the Office of the Public Guardian to notify the parties when an application to register an LPA is complete and the registration process is starting.
5. Enable the Office of the Public Guardian to operate a triage system for certain types of objection.
6. Expand the group of people who can raise an objection to include third parties who are not named in the LPA.
7. Enable electronic records of LPAs to be created and accepted by financial institutions.

Streamlining the process is a welcome change, but concerns remain about protecting vulnerable adults and those who are not digitally literate. The new online system is still being developed by the Office of the Public Guardian and further details are awaited about how it will work in practice. In the meantime, the Office of the Public Guardian report they have hired additional staff to process applications and it is hoped that this will clear some of the backlog of registration and improve timescales.