13th April 2023
Digital LPAs and why, for now, we are not using them
There was a recent piece on the Radio 4 program ‘Money Box’ about the difficulties many have encountered trying to use the digital certificate given at the end of the digitally drafted ‘Lasting Powers of Attorney form creation process’, presumably for Property and Finance, with various banks and other financial institutions.
It is probably fair to say that the level and depth of understanding amongst members of front-line staff at banks and other financial institutions that an Attorney may frequently encounter when registering the Lasting Power of Attorney (LPA) with banks etc., is insufficient to necessarily be able to safely process the digital certificate.
Frequently the standard position is that banks and other financial institutions ask for sight of the original, OPG registered Property and Finance LPA, or an appropriately certified copy of the same.
This is one of the reasons why we still prepare the forms in a hard copy format.
It is because we know that by doing so, where there is a physical, original, registered document, or a certified copy of the same, that this can be used by our clients’ Attorneys and the outcome is certain when it comes to notification to banks and other financial institutions of the fact of the registered status of that particular LPA, and there is a need on the part of the Attorneys to go through each bank or other financial institution’s internal procedures, where the donor either wishes that to be the case (the donor then retaining mental capacity) or is unable to make financial decisions (donor having lost capacity.)
We also feel that the digital version of the creation of the LPA form, whether the same be a Property and Finance one, or, a Health and Welfare one, does not yet have some of the safeguard hallmarks that drafting a paper one, using a Solicitor or other legal service provider, provides for.
It’s perhaps better if we try to explain what we mean by those ‘somewhat bold’ words.
If a Solicitor or other legal professional is drafting an LPA for a client, (who is ‘ the donor’ of that LPA), that solicitor etc. owes contractual, tortious and professional duties to the donor. It is particularly the case where the Solicitor acts as the certificate provider which we will always offer to do if asked, where we are given the instruction to draft an LPA for a client.
We understand the importance of the role of the Certificate Provider, and the need to make sure that the donor has mental capacity to understand the nature and meaning of the LPA, and, equally importantly, that the donor is acting through their own free choice and is not being coerced against their will into making an appointment of persons that they do not necessarily wish to act as attorneys.
Although it is true that there are additional notification requirements in place for the digitally created LPA, which to an extent offer an enhanced level of protection than would be the case if there were none whatsoever, some Solicitors and possibly some other legal professionals practising in this field of law may take the view that those supposed safeguards are not as sufficiently robust as one would wish the system to be, here.
One could well imagine a situation with a digitally created LPA that the donor had little or no real consensual involvement in the digital creation of the LPA document, merely agreeing to ‘press a button’ at the end of the process, when asked to do so by the Attorneys. There is little or no digital equivalent of the independent Certificate Provider
Indeed, it is easy to foresee that a digitally created LPA could be created when the donor has little or no mental capacity, which, of itself, is highly problematic.
It is also easy to see that an unscrupulous set of attorneys could easily coerce a vulnerable donor quite easily into agreeing to the digitally created LPA by either misrepresenting as to what it was and what it means for the donor, or by threatening certain actions or inactions if the donor does not ‘push the button’ to create it.
Whilst, therefore, there is a choice as to how one creates an LPA, we shall, for now at least, stick with the paper-based application, because of the additional safeguards we believe it offers for our clients, being the donors of Lasting Powers of Attorney at this point in time. For more information about making an LPA, please contact:
Edward Walter on 01892 502 320 – EWalter@bussmurton.co.uk
Michaela Lewer on 01892 502 349 – MLewer@bussmurton.co.uk
Jemini Chavda on 01892 502 342 – JChavda@bussmurton.co.uk
Amy Turner-Ives on 01892 502 396 – ATurner-Ives@bussmurton.co.uk