The Law Commission has recently carried out a consultation into the legal issues surrounding the electronic execution of documents, which included Lasting Powers of Attorney.
It is already possible to partly create a Lasting Power of Attorney online, and we understand that it is likely in future for this to become completely digital, with no need for a wet signature. The suggestion is that a document is completed by the donor, then transmitted to the certificate provider, then on to the attorneys, for each to consent to their appointment. In the year 2017/18, 27% of LPAs received by the Office of the Public Guardian for registration had been prepared online, with the intention to increase this to 30% in 2018/19.
It is obviously positive to encourage the use of powers of attorney by more members of the public, and this drive to make legal documents digital can only assist with that, but it is important that this is done carefully.
Another less positive result is that we would expect to see the number of powers of attorney running into difficulties with registration as a result of people inputting their own preferences and instructions, which if not drafted precisely will be struck out by the Office of the Public Guardian when it comes to registration.
We are already experiencing an influx of cases where donors have tried to include their own wording to control the way in which the power is operated, and this has been removed by the court as illegal or unworkable.
We would therefore suggest that if there is a desire to restrict or control the power to be given to the attorney by way of preference or instruction, that this is drafted by a solicitor who can ensure that the restriction will be workable and is not struck out by the court.
We are interested to see how this drive for digitisation continues to change the face of the law, and the opportunities that arise for solicitors to advise differently as our clients’ needs develop.