The Powers of Attorney Act 2023 – how far does it go to protect the vulnerable?

Related Sector: Health & Social Care

Introduction to the Powers of Attorney Act 2023

The Powers of Attorney Act 2023 received Royal Assent on 18^th September. Its stated aim is to provide safeguards to protect against fraud and abuse, by:

• Implementing online checks to confirm the identity of those applying for a Lasting Power of Attorney (LPA).
• Digitising the LPA process to improve processing time and reduce human error.

From a legal perspective, it amends both the Powers of Attorney Act 1971 and Schedule 1 of the Mental Capacity Act 2005, to allow for this online process. The process has not yet been “switched on”, but the legislation clears the way for those implementing it to do so. At present, we are told, it is undergoing extensive testing to ensure that it is simple, functional and secure.

The process is long overdue. There are six million registered LPAs across the country and the existing paper process is not fit for purpose. Under this new online process, queries or other difficulties could be dealt with within a matter of days, rather than the weeks the paper process requires.

We have also been told that there will still be a facility for a paper process for those who are unable to use the internet. It remains to be seen how they intend to combine the paper process and the digital process when someone searches for an LPA.

How has the Powers of Attorney Act 2023 been received?

This news has been met with a muted welcome by the legal fraternity. The Law Society (the professional association that represents solicitors for the jurisdiction of England and Wales) has broadly welcomed this innovation. It has, however, stressed the need for more stringent testing before the initiative is launched.

While there are very few criticisms, there are some. Chief of these is that the legislation has missed a golden opportunity to further spell out what is expected of certificate providers. Certificate providers who sign the LPA must confirm that:

• Its maker has the capacity to make it.
• Its maker is not under duress.
• There has been no fraud involved in its making.
• There are no other reasons for concern.

As the gov.uk website spells out, a certificate provider must be:

• At least 18 years of age; and either
• a friend, colleague, or someone the maker has known well for at least 2 years; or

a doctor, lawyer or someone with the professional skills to “judge whether you understand what you’re doing and are not being forced to make an LPA”.

The website offers further guidance on “someone who has known you well for at least two years”:

“You should ask a friend or neighbour, someone from your social or sports club, a work colleague, or similar. They must have known you well for at least two years. They must know you well enough to have an honest conversation with you about making your LPA and the things they must confirm when they sign the LPA.

If possible, they should discuss your LPA with you in private, without attorneys or other people present, before they sign to ‘certify’ their part of the LPA.”

Someone with relevant professional skills can be:

• A registered healthcare professional, such as your GP.
• A solicitor, barrister, or advocate.
• A registered social worker.
• An independent mental capacity advocate (IMCA).

Legal experts have, for many years, pointed out that it is a little unrealistic of the Government to expect the maker’s golf-club friend or even their registered healthcare professional, to be able to properly examine whether the person making the LPA has the capacity to do so and is not subject to coercion or control. They stress that if the LPA system is to properly safeguard those it is intended to protect, its associated checks should be significantly more rigorous.

Given that an LPA allows someone to make significant life decisions on behalf of another, the certificate providers should be able to carry out a capacity assessment. They should also know enough to be able to recognise indicators of coercion and control. A system which goes ahead without plugging these gaps risks becoming a system which simply allows fraud and other forms of abuse to take place more efficiently.

Summary

Whilst on paper, the Powers of Attorney Act 2023 does hope to streamline and make the LPA process much more efficient, significant testing needs to take place to ensure that this follows in practice. In addition, as we have highlighted above, there are concerns that perhaps it does not go far enough in protecting the most vulnerable in our society.

We look forward to the outcome of the testing but also, hopefully, to more online,“in your face’’, guidance as to the roles and responsibilities of those involved in the process.

Max Duddles is a Solicitor and Subject Matter Expert in Mental Capacity and Mental Health Law.

This article was first published on 26 October 2023