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Lasting Power of Attorney safeguards “at risk” under proposed changes, warns Law Society

Lasting Power of Attorney (LPA) safeguards “could be put at risk” under proposed changes to the regime, a major regulator has warned.

The Law Society for England and Wales said the new consultation, entitled modernising lasting powers of attorney, may compromise safeguards that protect the most vulnerable people.

An LPA is a legal document that allows someone – usually a family member or close friend – to make financial and healthcare decisions on your behalf if you’re no longer able to do so.

For example, someone diagnosed with dementia can ask their Lasting Power of Attorney to pay their bills for them or decide where they should live and what medical care they will receive.

To protect the most vulnerable people, the regime features a number of safeguards that come into force when the document is drawn up. This includes the need for an independent person – known as the certificate provider – to form an opinion that the LPA understands the demands of the role.

The safeguards also enable anyone to raise a grievance with the Office of the Public Guardian (OPG) after a document is registered, potentially leading to the removal of an unsuitable LPA.

But the Law Society says these safeguards “could be put at risk by a vaguely worded consultation which is due to close next month”.

The consultation document – found here – suggests that alternative solutions such as remote witnessing could improve access and speed up the service.

However, it fails to address “how the proposals will work for those who cannot access a digital service” nor “the need to ensure that the role of the certificate provider works within a digital process as was intended when the Mental Capacity Act 2005 was passed”, said the Law Society.

Commenting on the proposals, Law Society president I. Stephanie Boyce said: “LPAs are arguably the most important legal document that a person will ever make because they delegate such wide-reaching powers over their life.”

But it is unclear, she said, whether “the proposal is for the LPA to remain a deed; it is unclear whether the proposal is for the role of the witness to be merged with the role of the certificate provider; and it is unclear exactly how the actors to the LPA will evidence that they executed the LPA”.

“It is vital that these questions are cleared up.”

“Improving safeguards at the creation of the LPA should result in fewer attorneys making poor decisions and reduce the risk of the need to investigate concerns and removal by the court,” she added.