Lasting Powers of Attorney

Lasting powers of attorney (LPAs) in English law were created under the Mental Capacity Act 2005, and came into effect on 1 October 2007.

A Lasting Power of Attorney is a legal document whereby the Donor appoints somebody to act as their Attorney to deal with their Property and Finances and Health and Personal Welfare, should they lose mental capacity in the future. In order to enter into a Lasting Power of Attorney, the Donor must have full mental capacity at the time and it is the job of the Legal Advisor to assess this mental capacity when meeting with their client.

Any sign of undue influence from family members must be addressed and the test of Banks v Goodfellow 1870 is used to assess mental capacity.

However, since 2013 it has been possible to create Lasting powers of Attorney online without the need for meeting with a Solicitor or incurring legal costs.

The question is, how can the Donor’s mental capacity be assessed via an online form and how do we know that a family member has not applied for the Lasting Power of Attorney on the Donor’s behalf, or even worse, without their consent?

As times are changing and more and more services are easily accessible online, this speeds processes up for our busy lifestyles; i.e. online passport applications/driving licence applications, but is it really beneficial and safe for some of the most important documents that we may make in our lifetime i.e. Wills/Lasting Powers of Attorney to simply be a few clicks away on an online form?

It is up for great discussion whether applying for such documents online is safe, or whether they are simply leaving elderly clients in a very vulnerable position. A Lasting power of Attorney is required to be signed by Witnesses and a Certificate Provider to state that the Donor is not being coerced into making such a document. Surely this is impossible for the Office of the Public Guardian to monitor via an online portal?

I personally feel that such important documents should be dealt with face to face with a suitably qualified legal professional who can protect the assets and needs of their clients in the best way to avoid any problems in the future.

We all welcome changes that simplify our lifestyle, but perhaps there are just some important documents in life that should not be simplified, especially when it comes to protecting the needs of vulnerable adults.

If in doubt, always seek advice from a suitably qualified legal professional and ensure that your assets and family are protected in the best way possible for the future.