On 14 September, the Powers of Attorney Bill completed its parliamentary stages without amendment and received Royal Assent on 18 September as the Powers of Attorney Act 2023 ("POA 2023").
The legislation follows a government consultation in 2021 to modernise the process of making a lasting power of attorney ("LPA") including introducing a fully digital LPA. The majority of the provisions will not come into force until regulations are passed and the timing of these is unknown, but we do now have more certainty as to how the procedure for making an LPA will change at that point.
The POA 2023 amends the Mental Capacity Act 2005 as follows.
- Allow regulations to be made to provide for different ways to make an LPA depending on whether this is done digitally or on paper, or a mix of the two.
- Ensure only the donor can apply to register the LPA. The attorneys will no longer be permitted to do this.
- Provide for regulations to set out identity verification requirements that must be met for an application to register an LPA to be accepted.
- Require the Office of the Public Guardian ("OPG") to notify "named persons" when an application to register an LPA is complete and the registration process is starting.
- Enable the OPG to operate a triage system for certain types of objection.
- Widen the group of people who can lodge an objection so that it includes third parties not named in the LPA.
- Widens the categories of persons who can certify copy LPAs so that these include Chartered Legal Executives. This change represents an amendment to the Powers of Attorney Act 1971 and, unlike the rest of the provisions of the POA 2023, will come into force on 19 November 2023.
Whilst we do not yet have a timescale for the introduction of a fully digital LPA, the OPG has reported that it is already designing and developing these new services. With the passage of the POA 2023, it is clear that a more modernised LPA system is moving ever closer.
Wedlake Bell's Private Client team will be closely monitoring developments in this area and will provide feedback to represent the interests of our clients where there is opportunity to do so.
UK parliament passes Bill enabling digital LPA procedures | STEPThe Powers of Attorney Act 2023 – and how it will change the law – Mental Capacity Law and Policy; Powers of Attorney Act 2023 - Parliamentary Bills - UK Parliament; OPG Annual report and accounts 2022 to 2023 - GOV.UK (www.gov.uk)