Powers of Attorney Act 2023 brings LPA changes

The Powers of Attorney Act (the Act) received royal assent in September 2023, with the majority of the Act coming into force at an unspecified time in the future.

The main changes to Lasting Powers of Attorney (LPAs) that advisers should be aware of are as follows:

1. The Act provides for enabling regulations to be made which will facilitate the making of digital LPAs. This prospect causes some concern amongst solicitors and others advising on LPAs as there are worries that a move to digital LPAs will bring with it a greater possibility of fraud.
2. The Act also provides for the introduction of regulations to enable identity verification of those involved in making the LPA. If the proposed regulations are tight enough this might counter some of the fraud risks mentioned above.
3. Once in force, only the donor of the LPA can register the document, and not the attorneys as at present. As the donor will need to have capacity to undertake the registration process this effectively means that all LPAs will be registered when made. This is to be welcomed as any problems with the LPA can then be picked up at an early stage when the donor retains capacity and rectification is possible.
4. At present whoever applies for registration of an LPA must notify the person(s) specified by the donor in the LPA. This responsibility will now pass to the Office of the Public Guardian (the OPG).
5. All objections raised during the registration process are currently considered by the Court of Protection. In the future the OPG will operate a triage system, presumably so that the court only becomes involved when necessary.
6. The class of individuals that can object during the registration process is to be widened and will include third parties. This seems sensible as third parties such as, for example, care providers may be aware of information which might suggest that the appointment of a particular attorney is not advisable.
7. Finally, with effect from 18 November 2023 Chartered Legal Executives can certify copies of LPAs.