LPAs Go ‘Digital By Default’
The Government Digital Service is a team set up within the Cabinet Office given the task of developing government ‘digital by default’ services.
In 2014 they began rolling out digital services at the Office of the Public Guardian.
The Government Digital Service states on its website:
“Our aim is to be the unequivocal owner of high quality user experience between people and government …”
What does this aim actually mean for the public?
What are the full implications of a ‘digital by default’ service – especially for potentially vulnerable people. Where are the safeguards, for example for users of the Office of the Public Guardian (OPG) when making Lasting Powers of Attorney?
LPA – “it’s just a form, isn’t it?”
Lasting Powers of Attorney may have the appearance of a government form, however, it’s not ‘just a form’. A Lasting Power of Attorney(LPA) is a legal document binding upon the parties entering into it and carries with it statutory force.
It is one of the most important legal documents an individual can make and before entering into an LPA an individual should be aware of potential risks and consequences involved.
In a system where there is no direct human interaction, who is there to spot if there is something not quite right about the situation, to recognise that an elderly person might be being subjected to pressure or be in a delusional state? If there is no one to suggest alternative ways of approaching an issue or to explain the full implications of the choices being made, how can the donor of the power of attorney give their informed consent to it?
The Cabinet Office has praised the digital service in its report “Efficiency and reform in the next parliament” for reducing the error rate on submitted LPAs and thereby reducing the cost to government of providing the service.
However, the report makes no mention of the vast opportunity that digital LPAs open up for the dishonest or unscrupulous. There is no system for recording how many of the digital documents made since the system went live in May 2014 have actually been made by a dishonest relative or ‘friend’ on behalf of an elderly or disabled person without their knowledge or proper understanding.
There is nothing within the present system to prevent a digital LPA being completed on-line and a ‘helpful’ friend or neighbour being used to certify that the donor knew and understood the contents of the document and the implications of it, even if they didn’t or were not even capable of understanding it due to mental incapacity.
Having obtained the Lasting Power of Attorney through this faceless digital process in the secrecy of their own home, the attorney can use the document to clear out the donor’s bank account, or transfer their property into the name of the attorney, all by using on-line processes. Due to the speed and efficiency of digital systems all these actions can be undertaken within a matter of minutes. What could be more tempting for people with dishonest intentions?
The OPG is not authorised to give legal advice
People who use the OPG online services are completing the LPA documents at their own risk and the risks could be substantial.
When an elderly person has been stripped of their assets who will pay for their care? Will they be to blame for using a system that provides no legal or financial advice or independent verification when that is the system they are being encouraged to use by government?
Will the risks increase when digital signatures replace the current requirement for a ‘wet’ signature? Only time will tell what the true impact will be.
Digital LPAs are not compulsory. They are just an option. Using paper documents is still the norm at the moment. Alternatively, if you want to use the digital service but have the benefit of independent advice as well, you can ask a solicitor to sit with you as the document is completed on-line and advise you as the details are submitted.
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If you are worried about the cost of using a solicitor to advise you about Lasting Powers of Attorney don’t be. Ask us about a without obligation meeting to discuss what’s involved and our fixed fees, or if you’re looking for real value for money and practical help, have a look at our membership services. Become a member and you can benefit from information, tips and advice delivered to your inbox to help with making and using Lasting Powers of Attorney and much more. All for just a low monthly subscription. Ask about joining us today!
About the author
Rosamund Evans is a solicitor specialising in inheritance, incapacity and disability issues and is a full member of the Society of Trust and Estate Practitioners (STEP) and Solicitors For The Elderly. Rosamund provides a range of legal support through membership services and personal consultations. These services are provided as part of the law practice of Barker Evans Private Client Law which is authorised and regulated by the Solicitors Regulation Authority SRA No: 498553
The opinions expressed in this article are the author’s own. The information given does not represent legal advice and although every effort is made to ensure the accuracy of it, no guarantee is offered or to be assumed. If in doubt seek further clarification or independent verification.
Image by Renjith Krishnan courtesy of FreeDigitalPhotos.net