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09 Sep 2020

Wills & Probate

First ever Digital LPA is registered by the OPG – but is it good news?

As reports come in about the first ever digital Lasting Power of Attorney (LPA) being registered by the Office for the Public Guardian (OPG) last week, the newest member of our Wills & Probate team, Afonwy Howell-Pryce, gives her reaction.

“On 24 August 2020, the first registered LPA ever to have been signed electronically was received by director of WillSuite, Seb Skakh, who wanted to trial an experimental e-signing service to find out whether the OPG would approve his digital registration for his own personal LPA. Much to his – and our – surprise, they did.

“The experiment was conducted in the hope that those in quarantine without a printer would be able to create an LPA digitally, without having to physically sign the document with a pen and paper, to cut down on the delays that have been exacerbated during lockdown.

“A Lasting Power of Attorney (LPA) is a legal document which allows you to appoint someone to make decisions for you about your health, care and finances, should you lose mental capacity in the future.

“Since the start of the coronavirus pandemic and lockdown back in March, social distancing measures have made the signing of important legal documents like LPAs difficult for many people. Luckily, at Harding Evans, we have been able to continue operating throughout lockdown within the constraints but the actual witnessing of documents has been much more complex than usual.

“The reason that this first digital LPA has been registered by the OPG is so surprising is that the rules about signing and witnessing this important legal document have, understandably, always been extremely strict.

“For an LPA to be valid, the certificate provider – an impartial person who can confirm that you understand what you are doing and that nobody is forcing you to make an LPA – must sign the document, ideally on the same day as you, the donor, sign it. Your attorneys and replacement attorneys must then sign the LPA and their signatures must be witnessed.

“Personally, I think it is highly likely that this first digital LPA will be revoked by the OPG and will not set a precedent as Seb Skakh suggests, as there is just too much scope for the process to be abused if the documents are not signed and witnessed in person.

“It appears that the OPG is keen to remind people of the rules too as they tweeted this week ‘Did you know you can’t witness signatures via video calls when making a lasting power of attorney? ​All signatures must be made and witnessed in person, and not over a laptop, smartphone or tablet.​

“We therefore certainly don’t expect to see any change to the rules anytime soon. If any changes were to be made, we would be worried that some clients, particularly the elderly and vulnerable, may not be comfortable with adapting to this change.

“Even more concerning though would be the potential for things to go wrong or for the process to be abused. As an LPA is such a powerful legal document that allows another person to make important decisions about a vulnerable individual’s financial affairs and healthcare, the registration process has to be as watertight as possible, to protect all those involved from any potential wrongdoing.

“Also, families are often already going through a stressful and upsetting time when preparing an LPA as it’s the sort of thing that tends to be addressed when a loved one starts to show signs of losing mental capacity. The process therefore needs to be handled as clearly and as sensitively as possible, ideally with face-to-face human contact, to ensure the donor and their family have all the legal support and advice they need.

“We will continue to watch the progress of the digital LPA registration with interest but as ever, we will continue to act in the best interests of our clients to ensure their individual needs are met when preparing these important legal documents.”

If you would like to talk to one of our friendly, specialist team at Harding Evans about preparing a lasting power of attorney, we have years of experience and can talk you through the whole process. Visit our website at www.hardingevans.com, email hello@hevans.com or call 01633 244233 or 029 2267 6818.

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