Lasting power of attorney (LPA) applications are increasing in number, with 920,000 being registered in 2019/20. There are currently 3 million living LPA holders, which is anticipated to grow to 4.5 million in 2024/25.
Applying for LPA is currently a paper-based process that requires black-ink signatures from the donor, attorneys, witnesses and certificate provider in a specific order. This might require all parties travelling significant distances for face-to-face meetings, at a time when a donor’s health may be failing.
Recognising these challenges, the Ministry of Justice is looking to modernise the LPA service. This includes creating a digital channel for applications that can cope with the increasing demand placed on the Office of the Public Guardian (OPG). Modernisation could also include digital processes for identity verification, solicitor approval and remote witnessing.
Ethical considerations
With all technologies come opportunities and risks. Digital ethics is a systematic way of defining principles of right and wrong, and identifying and mitigating risk with regards to the impacts of digital technology and data use on humans, society and the environment. This process carefully considers user needs during service design, and helps to ensure that technology makes a valuable impact on people’s lives.
Here we explore these considerations for a digital LPA service.
- Safety
To provide a safe and valuable service, safeguards must be in place to ensure a donor is not coerced or manipulated, and that their best interests are accurately represented. These are typically conducted by the witness (anyone over 18 not named as an attorney) and certificate provider (who must also be independent of the donor and nominated attorneys). This provides a necessary degree of safeguarding against exploitation or fraud.
The Ministry of Justice is looking at clarifying the roles of witness and certificate provider. At the same time the Ministry is exploring digital processes for safeguarding and signature checks, possibly including remote witnessing and digital signatures. However, there are real concerns that a move to digital and remote interactions will create more opportunities for coercion and fraud. Some fear there would be more uncertainty regarding the donor’s freedom to execute the application and whether the LPA had been fully understood.
However, paper-based, in-person applications are not necessarily safer than digital. A robust process that provides verifiable digital signatures and identity checks, clear audit trails, multiple intervention points and easy appeal routes for concerned parties, could maintain and even enhance donors’ safety. Moreover, none of these features need come at the expense of private interactions with the donor to verify capacity and non-coercion. Further research into how digital verification can enhance donor safety is needed to reassure the public about safeguards in a new environment.
- Accessibility
Solicitors have voiced concerns that digital LPAs would be inaccessible for many applicants. For people already unfamiliar with legal documents, having to navigate a digital environment could be an obstacle too far, preventing them from applying altogether. Responding to these concerns, the Ministry of Justice stated paper-based applications would remain an option, but that these would become the exception as opposed to the rule.
Digital LPAs also bring benefits to accessibility, though. For those applicants whose health is failing, such as Parkinson’s disease or other degenerative motor-neurone illnesses, paper-based applications are challenging: shaking hands mean that handwriting may be illegible or exceed designated areas on forms, resulting in the LPA being rejected. [1] Moreover, to protect against forgery, correction fluids are not permitted on physical copies. A digital LPA, however, would allow for corrections to be made prior to signing, enabling donors to type responses when their health or motor skills are failing.
Additionally, prompts that highlight incomplete parts of an application could make the form more accessible to those unfamiliar with legal documentation. This would reduce the potential for overwhelm and so increase registered applications.
Collectively, then, a digital LPA would reduce the number of rejected applications due to illegible writing, writing exceeding designated areas, simple mistakes and incomplete information. These reductions would improve the efficiency of the application process, an increasingly important outcome now an LPA is seen as part of sensible life planning.
- Autonomy
A digital LPA can enhance donor autonomy by accelerating the application process. For example, for people with degenerative conditions, an expedited process will reduce uncertainties by knowing their wishes will be honoured if their health rapidly declines.
Moreover, donor autonomy can be improved by providing attorneys with easily sharable proof of the donor’s wishes. While the current process can involve in-person meetings, numerous proofs of identity and a paper certificate, a digital certificate that utilises identity checks and verifiable codes would expedite this, allowing attorneys to address the donor’s needs. This would enable attorneys to uphold the donor’s wishes in a more responsive, flexible way.
Digitising LPAs therefore offers to develop a more efficient process for demonstrating attorney privileges. Crucially, it can do this while building greater resilience within the system to prevent misuse of power and so further protect autonomy. This could be achieved through models such as federated identity and decentralised identity.
Federated identity would enable the OPG to provide proof of LPA to third parties, such as banks or healthcare providers. This would support and speed up these organisations in conducting their own identity proofing processes and therefore the delivery of the donor’s wishes.
In a decentralised identity model, the OPG would provide attorneys with a digital credential that verifies their identity in relation to the donor and defines the powers outlined in the LPA. Attorneys would then be empowered to share proof of LPA with third parties. To ensure federated identity, decentralised identity or other models protect donors’ autonomy, further assessment into secure digital identity models is required.
Conclusion
Modernising the LPA process could enhance donor safety, introduce more accessible applications and protect donor autonomy. This would follow a trend of employing digital identity to access government services, providing an opportunity to consider user needs during service redesign.
Incorporating digital ethics into the redesign will build citizen trust and provide greater assurance that risks will be avoided while the benefits described will be realised. Moreover, adopting a holistic digital ethics approach will enable developers to reference stakeholder values and measure improvements to safety, accessibility and autonomy, which provide evidence that changes are effective and user-centred, ultimately building trust in the LPA process.
By contrast, a failure to take ethics seriously in the redesign process risks exacerbating existing problems, furthering exclusion from the service and adding to delays in the processing of LPAs just as demand is rising.