On 20 January, we held another workshop with the MLPA working group. This was the first of a new series of workshops focusing in more granular detail on the operational aspects of the process. It was led by the OPG Service Manager, rather than the MOJ Policy team.

The workshop focused on a single area: OPG’s remit, which includes how we might proportionately verify the identity of the actors in any future service.

We had representatives from Alzheimer’s Society, Law Society, Solicitors for the Elderly, ADASS, ADSS Cymru, Mencap, Money and Mental Health Policy Institute, Financial Conduct Authority and the Building Societies Association.

Problem statement: when registering an LPA, OPG has no power to check the accuracy of information on the LPA, or to halt registration if it has a concern. OPG can only act if a concern is raised by a named person or under the direction of the Court of Protection.

Opportunity statement: how might OPG’s remit need to change, if at all, in order to increase protections against fraud, coercion and abuse in the process of creating and registering an LPA?

Increased powers and an appeals process

All attendees believed that legislation should set out enhanced conditions for the Public Guardian to register an LPA or have discretion to be able to refuse registrations. Some felt there should be a clear appeals process if stronger powers are introduced.

Some attendees impressed the need for any new conditions to be clear and transparent, and felt that data recorded and checked should not be hidden from actors.

One believed it would be impossible to anticipate all the ways in which a concern may be raised in future and would support the Public Guardian having a broader power to act against concerns, with details set out in regulation or a set of principles.

Flexibility in checking identity

While it was deemed important to verify information, it was paramount for some that identity checks should not be so prescriptive that they prevent those without certain documentation or internet access from creating an LPA.

There was broad support that an actor’s full name and date of birth should be verified, however it was felt that checking credit scores would be a step too far. Some were against the use of local authority records believing this may add undue burden on actors and institutions.

Some attendees felt there should be alternative ways for actors to verify their identity if they could not do it digitally, however few examples were provided. Others wondered if actors without internet access could ask a third party to digitally submit identity documents for them.

It was noted that any third party services used to confirm identity, would need to be familiar to, and trusted by, donors.

One believed that solicitors could assure the identity of actors who didn’t have documents, such as a passport or driving licence. However some felt this might increase costs for donors and the time needed to make an LPA.

During a group vote, no attendees identified an actor’s “signature or mark” as something OPG should be verifying.

Remit of objections

When asked who else could perform checks, comments focused on the certificate provider’s (CP’s) integral role. Ideas included CPs being given specific questions or scripts to use during their conversation with the donor, and giving CPs ways to let OPG know the results of their conversation with the donor or to raise a concern.

One attendee felt that OPG should accept anonymous objections, as this would allow those who felt unable or unsafe to raise concerns to come forward.

The need for OPG to carefully distinguish between vexatious and genuine concerns was noted, in order to prevent undue burden or delays for donors. Attendees also felt OPG would need a clear OPG process to manage disgruntled family members. However there were no suggestions for how this could be done.

One attendee mentioned that objections raised from registered professionals (including professional CPs) should be expected to meet a higher standard of evidence, with interest for a streamlined process for raising these to OPG.

Value of additional checks

Attendees mentioned different additional checks that OPG should consider performing, however none prompted discussion or a stronger consensus.

One believed actors should be checked against other registered powers of attorney or deputyships to check if there are any conflicts or past concerns.

One remarked that the identity of individuals was still less important than the suitability and appropriateness of the attorney chosen.

It was suggested that checks could be automated, with cases with any data inconsistencies escalated for manual checks or an enhanced check. This would allow for more straightforward registrations, with effort focused on complex cases.

Our next workshop

We’ll be running a series of workshops in early 2021. These will be an opportunity to explore the key themes discussed so far in more detail.

The second workshop will be held on Tuesday 9 February from 10am to 12 noon and will focus on witnessing.