The Bill received government support following a consultation in 2021. The consultation showed the necessity for legislation to introduce a fully digital lasting power of attorney (LPA).

This bill will allow substantial changes to the procedure of creating LPAs in England and Wales by amending the Mental Capacity Act 2005. The proposed amendments will empower the Office of the Public Guardian (OPG) to implement a digital process to set up and register LPAs. This process will run in parallel with a *hopefully) improved paper application system.

The Bill aims to streamline LPA creation and registration processes making it easier for individuals to obtain certified copies of LPAs in England and Wales. The new provisions include identity verification requirements during the LPA registration application. This will ensure that only the donor can initiate the registration process.

Additionally, the Bill simplifies the objection process for registration. It allows third parties not initially mentioned in the LPA to object to the LPA.

It accommodates varying processes and types of evidence depending on whether the LPA is created digitally, on paper, or through a combination of both.

The Ministry of Justice says that these alterations will not only facilitate the creation of LPAs for donors but also bolster protection against potential abuse. The changes are anticipated to improve safeguards against fraud for the public. The OPG is expected to achieve a more streamlined process that provides increased value for fee payers through the automation of administrative tasks.

Ultimately, these measures should allow more people to proactively plan for their future and maintain control over their lives.

The commencement date of the Bill remains uncertain but the OPG has started designing the digital LPA system and conducting user testing.

The OPG is working with the Ministry of Justice to prepare the necessary amendments to secondary legislation for the seamless implementation of this innovative service.

To learn more about how you can use Capacity Vault to protect your clients’ needs click here: https://capacityvault.co.uk/for-professionals

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The good news is that the Courts seem increasingly inclined to trust the professional judgement of a solicitor preparing wills. The bad news (for solicitors) is the extra burden this places on the legal advisor. The counter-argument is: a solicitor is not a medical professional so should they have the final say on whether a client has capacity?

In the current situation legal advisors have to be more careful than ever. It seems increasingly likely that solicitors’ judgement calls will have more weight. A solicitor could therefore be on the hook to a disgruntled beneficiary (or potential beneficiary) if there is doubt as to the solicitor’s judgement call.

Capacity Vault has been created to answer just this issue. When a client makes a Capacity Vault recording the eventual question of capacity can be examined by the courts. By seeing our contemporaneous recording the courts can make their own decision, on the facts, as to the client’s capacity. We use every technological advantage available to ensure recordings are stored indefinitely (expected recording life in excess of 50 years) and we use aspects of AI and blockchain technology to ensure recordings are tamper-proof and available to all parties of a dispute in a form the courts will accept as evidence.

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