Scottish laws on living wills labelled ‘ambiguous’
In modern society there is an increasing recognition that people should be allowed to choose how to die.More
Government recently announced digital changes to the process of applying for an LPA. It's been said managing loved one's affairs should soon be made simpler.
The government recently announced that, for the first time, people will be able to make a Lasting Power of Attorney (LPA) completely online.
However, during the consultation process the Law Society pointed out that 5 million people aged over 55 do not have access to the internet and many older and vulnerable people do not use computers. Consequently, the government decided that the paper-based system will remain alongside the new digital system. This means people can choose the method of application that best suits them.
What is an LPA?
There are two types of LPA: a health and welfare LPA, and a financial and property LPA. Both are legal documents that enable you to choose who can make decisions on your behalf if there comes a time when you cannot.
The person you choose to make decisions is known as your ‘attorney’. You can choose more than one attorney if you wish.
Why make an LPA?
If someone loses mental capacity and they do not have an LPA in place their loved ones need to apply to the Court of Protection for permission to make decisions for them. Many people believe their next of kin can automatically make decisions for them if they lose mental capacity, but this is not the case.
Applying through the Court of Protection can be expensive and time consuming. This means that urgent decisions relating to payment of bills or health issues will probably be delayed.
Why is the government introducing an online system for LPAs?
The main reasons for introducing a completely online system are:
How will the online system protect people from fraud?
For an LPA to be legally valid it must be registered with the Office of the Public Guardian (OPG). The OPG does not have any contact with those who make an LPA, or the witnesses involved, which leaves the process open to abuse.
With the new online system there will be a robust verification process where all parties will undergo checks (including passports, driving licences, proof of address etc.) to confirm their identities.
How much faster will the new online system be?
At the moment the LPA registration process takes around 20 weeks. The government says this could be reduced with the new online system. If true, an LPA will be legally valid more quickly which is good news for both those who create LPAs and for their attorneys.
Will errors in the application process be reduced?
With the current paper-based system, if a mistake is made in an LPA application, then the process may need to start all over again. This is both expensive and difficult, especially if an attorney needs to make decisions urgently.
Creating an LPA with an experienced solicitor means errors are unlikely, and the digital application system may reduce the likelihood of mistakes even further. The digital system will flag up errors during the application process so they can be resolved quickly.
Another advantage of the digital system is the reduction in paper. Currently, the OPG handles millions of pieces of paper every year. The paper making process has a huge carbon footprint due to the amount of water and energy used, so digitisation is an important step towards carbon efficiency.
Is the online system likely to be easier to use?
According to Justice Minister, Tom Pursglove, the government’s reforms “will make the system easier to access, simpler and even more secure from fraud.”
Whether the system will really be easier and simpler to use remains to be seen. There may certainly be teething problems in the beginning as with many new digital systems.
Digitisation will certainly make it easier for people to appoint attorneys who do not live near them because there will be no need to sign forms in person. However, it is important to consider whether appointing an attorney who lives some distance away is practical for managing day-to-day decisions relating to health, finances and welfare.
What are the dangers of an online system?
Although the intention of the digital system is to protect people from fraud, there are those who argue the opposite will happen. If LPAs can be witnessed remotely it could make it easier for vulnerable people to be coerced into creating them. This could lead to the validity of more LPAs being challenged in court. The government has yet to confirm how the witnessing process will work under the new system.
Currently, a certificate provider (who cannot be your attorney) must sign to confirm that you have not been coerced into creating an LPA and that you are of sound mental capacity. This is an important safeguard. The government have not yet clarified how the certificate provider’s role will be affected.
Will you need a solicitor to create an online LPA?
If the online system is easier to use than the current paper-based system people may decide they do not need a solicitor’s guidance. However, seeking legal advice before creating an LPA will remain the best way to protect yourself and it will be as important as ever.
A solicitor can: