On 9th February 2021, we held our second process workshop with the MLPA working group focusing in detail on the operational aspects of a future service. The workshop was led by the OPG Service Manager and focused on the role of witnessing.

We had representatives from; Alzheimer’s Society, Law Society, Solicitors for the Elderly, STEP, Money and Mental Health Institute, Financial Conduct Authority, Race Equality Foundation.

Problem statement: an LPA has to be witnessed because it is a deed. However, both the role and act of witnessing are not widely understood and can be easily manipulated. This undermines its value in the process of creating an LPA in its current form.

Opportunity statement: how do we create robust evidence that an agreement has been made legitimately without compromising the security of the document itself or other parts of the process?

We received a mixed collection of views on witnessing. Some participants see witnessing as a valuable safeguard that also provides gravitas and ceremony to signing the LPA. Others felt the role is superfluous and that witnesses are most valuable for donors but are unnecessary for attorneys and replacement attorneys.

Some attendees stated that witnesses should do more than attest a mark had been made, and should in addition confirm the identity of the donor/attorney as well as their intent to make the LPA. This led to some proposing an argument that the role of the witness should be merged into that of the certificate provider (CP).

If the witness were to remain, the consensus was that the witness should have sight of the mark being made, and that confirming an actor’s identity and intent should be part of the role. However one attendee added that if a witness was familiar with the actor’s identity, whether a telephone conversation could be used to attest identity and intent to make the document. While the idea lacked the support of other attendees, a general theme emerged that regardless of the technologies used it is important to capture the donor/attorney identity and associated intent.

There were mixed opinions about live video witnessing and digital signatures. Some said they would support a live video witnessing tool if it offered both line of sight and maintained the gravitas of in-person signing. Digital signatures were a supported option for some, as long as a confident link could be established between the identity of the individual and the mark made. This is an outcome which some believe current electronic signatures fail to deliver.

Enhancing the role

Some believed the role of the witness should be expanded. In a rating exercise, attendees believed a witness should:

• • confirm the identity that is being claimed by either donor or attorney

  • state they are not related to the actor

  • confirm the actor has read the agreement

  • confirm the actor is knowingly making a legal declaration

  • state they have known the actor for at least two years

Some added that expanding the role as above would make a strong argument for combining the roles of witness and that of the certificate provider. It is believed that this would also help to streamline the signing process. However one argued that witnesses, independent to certificate providers, bring gravitas to the LPA.

There was no support for enhancing the role to require either a qualified individual or a legal official, with many believing that this would add unnecessary barriers, across cost and effort, to those making an LPA.

The certificate provider continued to be raised as the most important role in the process.

Identifying those who sign

A point was raised that the witness should confirm the connection between the identity of the actor and their intent to sign the document.

One added that historically deeds were signed and witnessed at a time that lacked a stronger means of identification, hundreds of years before the invention of passports. If the intent was to create a link between the purpose of signing, and a person’s identity, could this be achieved with more modern means.

There was some support for digital signatures, based on clear conditions. One stated that the donor’s identity and their intention should be captured securely. Another said that the process must be able to ensure an identity can be verified. Current electronic ID checks were referenced as not achieving this desired standard.

Removing the witness

There was a strong consensus that the donor and attorney witnesses should perform the same functions. However in a vote later in the workshop, strong opinion emerged that a witness to an attorney’s or a replacement attorney’s signature were much less valuable than a witness to a donor’s signature.

One participant believed that if a future LPA were no longer a deed, and therefore no longer required the need for a witness, the LPA should retain the same protections and rights under the Limitation Act 1980.

When considering the number of witnesses involved, an additional witness or second CP was seen as valuable where a donor cannot physically sign and must instruct another to make a mark on their behalf.

Checking an attorney's understanding

When the idea of a CP for an attorney was raised, there was little to no direct support. However, two attendees commented that it would be useful to have an independent witness to confirm that the attorney understands their role and responsibilities and their intent to act accordingly.

Importance in seeing the event

Attendees explored whether it was important for a witness to see, experience or know that the execution had taken place. Importance was placed on seeing the event, and that experiencing the event would add gravitas. However there was little to no support for only knowing the LPA had been signed with the belief that this limited role didn’t act as a sufficient safeguard against fraud. One likened ‘knowledge of the event’ to the role of ‘persons to notify’.

Attendees who marked that it was important for a witness to have ‘sight of the event’ supported it with mixed thoughts on how this should occur. Some continued to be opposed to witnessing through online video while others supported the option as long as line of sight remained.

If the witness knows the actor, one attendee supported remote witnessing via phone as a way to establish identity and intention. One stated that should a witness need to attest the actor's ID and intention as part of an expanded role they would require sight of that event as a minimum.

Online remote witnessing continued to receive mixed support with some stating that it provided a valuable alternative and that line of sight and gravitas can still be maintained. One attendee was unsure how a witness could be satisfied they were seeing the correct document being signed. It should be noted that currently there is no legal requirement for the witness to inspect the LPA.

Lastly, the opinion remained for some that witnessing could only ever be in-person due to the requirement of the LPA being a deed.

Mixed reviews of upcoming prototypes

During the workshop MOJ Digital shared a selection of screens from different prototypes the team had built to test with donors and certificate providers.

These prototypes were built to support research teams to investigate the value end-users place in the current service and to provoke discussion, not to evaluate a solution.

The first example provided a donor with a choice as to whether their LPA should be witnessed. To explore to what extent donors value the role. This received no support and one noted that while persons to notify was a donor’s choice, that witnessing represented a different function. One commented that if OPG could develop alternative assurance about who signed the document, choice could help.

The second example presented the Public Guardian as a form of digital witness. To explore whether an organisation can create a sense of gravitas. This received mixed feedback and little support. One supported the OPG as a form of witness, while others questioned how identity could be confirmed this way and that this idea, in its present form, could be an optional extra. Within this idea, the Public Guardian explains in a recorded video how the digital witnessing role works. The idea of informative videos about different roles involved in the LPA was well received.

The third example provided a donor and a CP with the ability to witness their signing activities through a web browser. To explore donor perceptions of remote witnessing and reactions to stretching this role. The screen presented in real-time when a donor and CP had logged on, reviewed and signed the LPA but without sight of the event. This raised concerns as to how the identity of these actors would be assured. There was concern that without confirmation of identity, it could be left open to impersonation. One said they would feel happier if the OPG outlined how this technology would link in with a digital identity, making reference to the UK Government Gateway.

Our next workshop

The third process workshop will be held on Tuesday 2nd March from 10am and will focus on objections prior to registration.