Fiona Heald and Sophie O’Connell look at what will change when the Powers of Attorney Act 2023 comes into force
The Powers of Attorney Bill received royal assent on 18 September 2023 and is now the Powers of Attorney Act 2023 (the act). At the time of writing, there is no date for the act to come into force.
In this article, we will consider the main changes. We must acknowledge the very helpful walkthrough of the bill provided by Alex Ruck Keene’s KC (Honorary), which can be found here: tinyurl.com/bdzbccmc. Alex helpfully reminds us that lasting powers of attorney (LPAs) are only one way to help someone exercise their legal capacity, and that within the provisions of the Mental Capacity Act 2005 it would be possible to establish a supported decision-making scheme. For further information, see Alex’s website and the Law Commission’s Mental Capacity and Deprivation of Liberty report.
One of the main aims of the changes is to make LPAs digital, although it will still be possible to make a paper application. Another aim is to speed up the process, as the current registration time is 20 weeks.
Currently, either the donor or the attorneys can register an LPA. However, after the act comes into force, only the donor will be able to register the LPA. Though many people register their LPA once all parties have signed it, as practitioners it will be important to advise our clients of the potential consequences of the donor not registering their LPA and subsequently losing the mental capacity to do so, as an LPA is not valid and cannot be used prior to registration. Therefore, if a donor loses the mental capacity to register their LPA, an application for a deputyship order will be required.
This seems to also be the case if the donor loses the capacity to register their LPA between their signing it and all other parties signing it. This issue has been raised but, to date, no answer has been given and there seems to be no way around having to apply for a deputyship. Whether or not the attorneys can apply for an order asking for the LPA to be registered is not yet known. This will cause more delays and stress to the attorneys.
By making the process digital, the Office of the Public Guardian (OPG) should be able to deal with errors online, so that the donor cannot proceed further until the error has been rectified. This should be quicker than the current process of posting the paperwork back to the donor.
Under the current process, only those named in an LPA can make an objection. Also, any objections have to be considered by the Court of Protection, which causes delays to registration. In the future, it will be widened so that anyone can make an objection. In addition, the OPG will be able to decide if an objection has merits or should be dismissed. The basis for any objection remains the same.
There will be checks on the identity of the donor before the OPG accepts an LPA for registration. While this will help with identity fraud, it could be problematic for people without photographic identification and, without the strengthening of the certificate provider’s role, the process is still open to abuse. It is not yet known how potential abuse will be dealt with, so it is hoped that this will be sufficiently robust to deal with those who have access to the donor’s ID or who are ‘helping’ the donor create the LPA. Those of us who work with vulnerable clients will worry how the safeguards will work with regards to undue pressure and other potential abuse.
Role of the certificate provider
The Law Society has expressed concern about the act’s failure to strengthen the role of the certificate provider. There are no guidelines in the LPA to assist the certificate provider in determining if the donor has the capacity to make an LPA. The Law Society has suggested that it would be useful to have questions for the certificate provider to ask the donor to ascertain their capacity to make an LPA, and to ensure this information is stored. As the act has no changes proposed to the role of the certificate provider or assistance provided to them, then, if there is doubt in the future about whether a donor had the mental capacity to make an LPA, there will be no record of how the certificate provider formed their opinion. Many people still see the role of certificate provider as no more than witnessing the LPA, which is of course a huge issue.
The president of the Law Society at the time, Lubna Shuja, stated that: “The Powers of Attorney Act could have done more to provide additional support for certificate providers.
“The act fails to make it clearer that the certificate provider has a responsibility to confirm the donor’s mental capacity and set out the requirements for fulfilling this role.
“For example, a certificate provider should be required to ask questions to test whether they can safely form an opinion as to whether the donor has mental capacity.
“They should also be required to record and store how they formed their opinion in case this is needed later.
“While this has not been included in the act, we are pleased that the Ministry of Justice has pledged to provide additional support to certificate providers.
“We are committed to working with the government to achieve this.”
The Ministry of Justice has stated that it is committed to providing additional support for the certificate provider as part of its work to modernise LPAs.
A welcome, long-overdue change is that chartered legal executives will now be able to certify LPAs.
The Law Society has recently updated its practice note on LPAs, which can be found here.