Murray Beith Murray LLP is a leading Scottish private client law firm.
For 175 years we have specialised in meeting the legal, financial and administrative needs of individuals and families, family trusts, charities and private companies.
Murray Beith Murray LLP is a leading Scottish private client law firm.
For 175 years we have specialised in meeting the legal, financial and administrative needs of individuals and families, family trusts, charities and private companies.
A Power of Attorney allows you to make provision in advance for the possibility of you becoming incapable of managing your own financial and welfare affairs during your lifetime. This becomes increasingly important as the risk of supervening mental incapacity grows through longevity, illness, or accident.
The standard form of Power of Attorney in England and Wales is the Lasting Power of Attorney (LPA). These forms can either be to cover Property and Financial Affairs, or Health and Care Affairs. In practice, these forms can be very difficult to complete as they must be signed and dated in a very specific order and the smallest mistake will result in the application for registration being rejected. It is widely accepted that the procedure can be confusing, inflexible, and bureaucratic.
Since the introduction of LPAs in 2007, the world has changed with the growth of technology and people’s expectations have changed with it. The Government has decided to reform the process of making and registering LPAs in England and Wales to make it safer, easier, and more sustainable.
To be effective, an LPA must be registered with the Office of the Public Guardian (OPG) and an application fee paid per LPA. There are two types of LPA:-
The forms require to be signed by the granter of the LPA (donor), the attorney(s) that are being appointed, and a certificate provider (who must confirm that the granter understands the nature and extent of the LPA and that he or she has not been pressured into making it).
Although the forms can be found online and printed, the signing and witnessing of the forms must still be completed on paper, which can be a cumbersome and time-consuming process. While the OPG aims to register LPAs within eight weeks, the registration period can often in practice take up to twenty weeks. This is because the OPG must conduct manual checks on each piece of paper to confirm that it has been completed correctly, which is also a very time-consuming process.
The primary objective of the Powers of Attorney Bill (“the Bill”) is to introduce a new digital application process. The current paper-based methods will continue to operate for those who do not have access to the internet or a computer. It is hoped that this will allow a greater number of people create LPAs more easily and, from a sustainability perspective, greatly reduce the amount of paper that is used.
The Bill also introduces new identification checks that would require official documents or information to strengthen the verification process. The intention here is that it will assure the OPG that those who claim to be involved in the LPA are who they say they are and thereby reduce the risk of fraud by false representation. If the requirements for identification checks are not met, the Public Guardian cannot register the LPA.
The LPA will be registered as an electronic document on a central register, which can be accessed by third parties and updated by the Public Guardian without requiring the paper version to be returned. While LPAs can currently be registered by attorneys as well as the granter, the Bill proposes that only the granter (or donor) of the LPA can apply to register the LPA.
The Bill is currently scheduled to have its third reading in the House of Lords next month. The Law Society of England and Wales has raised concerns about the certificate provider and whether sufficient checks are in place regarding that function in a digital process. At its second reading in the Lords, this was acknowledged and in due course proposals will be made about the best way of achieving that. What is, however, striking is the bipartisan support for the Bill.
During the Bill’s second reading in the House of Lords, it was noted that the Law Society of Scotland had expressed concern that Scottish Powers of Attorney are not always readily recognised in England and Wales. The OPG (Scotland) website explains that a Scottish Power of Attorney can be used in England or Wales if an organisation accepts its authority. If they do not, then it can be problematic as there is no mechanism in the Mental Capacity Act 2005 to endorse a Scottish Power of Attorney. Lord Bellamy noted that it is the view of the Government that this is primarily a question of raising awareness and ensuring that the relevant professionals are familiar with the status of Scottish Powers of Attorney, as there is no legal reason why a Scottish Power of Attorney cannot be recognised in England and Wales.
Adam Swayne is a solicitor within our Asset Protection Group and specialises in Estate Planning, Powers of Attorney and Wills.
Murray Beith Murray has dual qualified solicitors (Scotland and England/Wales). If you would like discuss preparing a Power of Attorney or a Lasting Power of Attorney, then please complete our contact form, or call us on 0131 225 1200.
Established in 1849, as advisors for generations of clients, Murray Beith Murray is committed to values of integrity, expertise and trust. This aim and these values continue to this day, as does our commitment to be here when you need us.
