24.08.20

The Office of The Public Guardian has launched a new online service to make the use of Lasting Powers of Attorney (LPAs) easier. The new tool currently applies to LPAs registered after 17 July 2020. The Office of the Public Guardian also have plans to widen the use of the tool to LPAs registered earlier in 2020 and some from 2019, although when this will be available is yet to be confirmed.

What’s changed?

Under the new system Attorneys need to set up a ‘use an LPA account’ online. Once an Attorney has an account, they can register multiple LPAs using the unique LPA reference number and activation code which will be sent to them when the LPA is registered with the Office of the Public Guardian.

In the online account Attorneys can generate access codes and provide these to the required organisations. The organisations will have their own portal to input the access codes, which expire after 30 days and will then be able to view a summary of the LPA online.

The details on the summary include, names, addresses and date of birth for the donor and attorney. How attorney decisions are made, whether there are instructions or preferences (although the specifics of the instructions and preferences are not included), when the LPA can be used, date the donor signed the document and the registration date.

Attorneys have traditionally needed to obtain the original or properly certified copies of the LPA’s and physically provide these along with their own ID papers in person (or by post) to all companies and organisations with whom the Donor had dealings including; banks, pension companies, mortgage providers, general and life insurers, HMRC, DWP, doctors and care providers.

The process of obtaining sufficient copies and providing them to all parties concerned can present a cumbersome and time-consuming task for Attorneys possibly at a time where the Donor may need additional support and matters may need to be dealt with quickly. To add to this, many Attorneys report attempting to register LPAs with organisations and coming across staff who have never encountered LPAs and this has added to the frustration. Whilst there have been attempts by the institutions to remedy this situation by staff training and setting up dedicated teams the system is still imperfect.

For this reason, a new system to make the procedure simpler is to be welcomed however it is important to ensure the new system has sufficient protections and safeguards for elderly and vulnerable Donors.

Potential issues

Whilst modernising the system is welcomed, there are a number of important issues that may fall under scrutiny. With the new system there does not appear to be any requirements for the Attorney to provide ID to set up the ‘use an LPA account’. However, they will need the letter from the Office of the Public Guardian with the reference number and activation code on it.  It also remains unclear at present whether and how Attorneys will be required to provide ID to the organisations directly. It is likely this will depend on the organisation involved and the system may therefore not completely remove the need for Attorneys to provide papers to each organisation.

Another point to note is that the new system is in its infancy and it is not yet known how many organisations will be using it. It seems likely therefore that certified copies will still be required for some time yet, for LPAs registered both before and after 17 July 2020.

Safeguarding the vulnerable

As we have seen above, in addition to the possible security and practical problems with the new system there are also concerns regarding the safeguarding and protection of elderly and vulnerable Donors.

Lasting Powers of Attorney (LPA) are powerful legal documents. Once a Property and Financial Affairs LPA has been registered with the Office of the Public Guardian, unless there are any restrictions in the LPA, an appointed Attorney can deal with all aspects of the Donor’s financial affairs. Including; managing bank or building society accounts, collecting benefits or pensions, and selling property.

The choice of Attorney is crucial and should be somebody that the donor trusts. Sadly, this is not always the case or the trust is misplaced. Even the current system can be open to abuse by insincere people befriending and obtaining Power of Attorney for an elderly or vulnerable person. It is already no longer necessary for the certificate provider of an LPA to have any legal or medical qualifications, so there is already no safeguarding at that stage. The concern is that by making it easier to use an LPA, in turn makes it easier to misuse an LPA to the disadvantage of the most vulnerable.

Property and Financial Affairs LPAs can also be drafted to be used both before (with the Donor’s consent) and after the Donor loses capacity. It is often recommended that they be drafted for immediate use so Attorneys are not required to provide evidence of mental incapacity of the Donor each time they need to use the LPA.

Under the traditional system, use of the Property and Financial Affairs LPAs whilst the Donor still has capacity is controlled by the Donor. The Donor would need to provide the Attorney with a certified copy before the Donor could register it with the organisations and use it. In this respect the Donor is the gatekeeper of the use of the LPA.

Under the new system that safeguard is removed and the Attorney can access and use the LPA immediately. It does not seem the Donor is contacted when an LPA is activated on the online system or when access codes are provided to the organisations. The organisations may do this directly, however policies will vary and it may not be done in many cases.

It is possible to restrict the decisions which an Attorney can make in the drafting of the LPA, but as advised above the summary accessed by the organisations via new system does not include the specifics of the instructions or preferences. It may be the case that where an organisation is notified on the summary that preferences or instructions are included, they may require the details or copies of the LPA. Again, this is currently unknown and varying policies may lead to inconsistencies.

On the whole the new system is a welcome move from the Office of Public Guardian but whilst it is important to have a system which is easy to use and convenient for Donors and responsible Attorneys, the protection of vulnerable people also needs to be considered. As professionals we wait to see how the system works in practice and if you have used it, we would welcome your comments on how it is working.

How can Renaissance Legal help?

Further information on the new system is available here: https://www.gov.uk/government/news/new-online-service-to-improve-lasting-power-of-attorney

Protection for the Donor can be built into properly drafted LPAs to ensure Attorneys have sufficient supervision and knowledge of the what the LPA allows them to do and to prevent misuse.  If you would like advice on Lasting Powers of Attorney or would like to put them in place, then please do get in touch with our specialist team for a confidential discussion.