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Powers of Attorney Act 2023

James considers the Powers of Attorney Act 2023 and what this may mean for clients and practitioners when it comes into force.
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James Ashby
4th November 2023
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Information News

The Powers of Attorney Act 2023 (the Act) gained royal assent on the 18 September 2023. Most of the provisions of the Act will be brought into force at a later date to be decided by the Lord Chancellor. The legislation aims to modernise lasting powers of attorney (LPAs) and allows for LPAs to be drawn up entirely online or on paper (or a mixture) and for the electronic record to be used as evidence of registration.

An important change that we know will occur two months from 18 September 2023 is that chartered legal executives will be able to make certified copies of power of attorney documents, which will make it easier for donors and attorneys to access certified copies.

When the Act does come into force, what effect will it have?

One major change is the introduction of ID requirements on registration for all of the donor, the certificate provider, the attorneys and any replacement attorneys. Although we routinely check the ID documents of donors when we are drafting LPAs for them, the requirement for everyone involved in the LPA process to provide their ID is likely to slow the process of making and registering an LPA.

We do not know what the ID requirements will be, as this will be decided in the statutory instrument that “activates” the relevant part of the act. We hope that this will take into account that not everybody in the country has a passport or driving license.

Currently, both the donor or the attorneys of an LPA can apply to register the same with the Office of the Public Guardian (OPG). The Act changes this so that only the donor can apply to register the LPA. An LPA has to be registered to be used. We currently do not know if this affects LPAs made before the date of the Act which have not yet been registered and again, hopefully whoever drafts the statutory instrument will consider this.

Another major change is that the Act will allow a purely electronic version of the LPA to be used as a legal document. Currently, paper certified copies of an LPA are the main way that is used to show a bank or other institution that the attorney has the authority to act for the donor. We will need to wait for the statutory instrument to be finalised to be able to know how these processes will work in practice.

Finally, the duty to inform named persons in an LPA will pass to the OPG rather than the person registering the LPA and there will also be a new objection system to allow third parties to raise their concerns about an LPA directly with the OPG.

Overall, we only have a broad idea of the changes and the full details will be available from the statutory instruments in due course.  The OPG are already considerably delayed in registering LPAs and it may be the case that  the proposed changes create more delays. If you are concerned about such delays, you may wish to make and/or register LPAs now before the changes to the system go “live”.