The Mental Capacity (Amendment) Bill (“Bill“) was introduced in Parliament on 6 March 2024, and had its second reading on 2 April 2024. The Bill seeks to amend the Mental Capacity Act 2008 (“MCA“) to provide that a lasting power of attorney (“LPA“) in the form of an electronic record is not invalid as a deed by reason only that it does not clearly state on its face that it is intended to be a deed by the donor. This is provided that the instrument was made using the electronic transaction system of the Office of the Public Guardian in compliance with the other applicable requirements, and was made between 14 November 2022 and 4 January 2024.
The Bill also provides that no legal proceedings may be instituted on or after 6 March 2024 in any court on the basis that the missing statement affects the validity of the electronic LPA in question.
The proposed amendment is intended to address the fact that about 87,000 electronic LPAs were found to be lacking an explicit statement that they are deeds, which is currently a requirement under Section 12(1)(a) of the MCA. The Ministry of Social and Family Development (“MSF“) has stated that these LPAs are still legally valid. The Bill has, however, been introduced to retroactively validate the LPAs and avoid the possibility of any legal challenges due to the omission of the statement of deed. There is no impact to LPAs made through the hard copy process as that bears the statement that the LPA is signed, sealed and delivered as a deed.
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