The consequences of the updated Powers of Attorney Act 2023

October 20th 2023

The newly updated Powers of Attorney Act 2023, which received royal assent on 18th September, will have a significant impact on the process of setting up a Lasting Power of Attorney (LPA). The aim of the Act is to streamline and modernise the process through complete digitalisation, allowing an application to be completed entirely online.

In a recent article in the Times by Catherine Baksi, the President of the Law Society, Lubna Shuja, stresses the importance of maintaining the paper route as many in care homes and hospitals struggle with online processes, and around 1.5 million homes are still without internet access. There are additional concerns that the ease of processing the new digital cases will result in physical applications being overlooked and delayed.

The changes introduced in the new Powers of Attorney Act aim to provide additional safeguarding and reduce the opportunity for abuse through identity checks and the introduction of a framework allowing third parties to object to the registration.

The opposite may in fact be likely. Those who are making LPAs may not be technologically savvy (many applicants are older, alone or unwell), and therefore may require assistance with the process. This could easily lead to abuse if those assisting them aim to take advantage.

There remains insufficient understanding of the mental capacity of those in the “twilight zone” – those who still have legal capacity, but whose cognitive abilities are impaired by dementia or other illnesses. Many experts believe that the test in Mental Capacity Act 2005 should be adopted, along with the guidance of other professionals including doctors, to conduct a realistic assessment of an individuals’ capacity in these cases to safeguard against abuse.

This new Act promises an improvement on the current procedure. Those of us who work with the vulnerable and those struggling with cognitive issues are concerned that in the interests of digitalisation and speed, a proportion of the population is being overlooked. 

If you have any questions about the process to implement a Lasting Power of Attorney  then please do contact me.