The Court of Protection (“CoP”), established under the Mental Capacity Act 2005 (“MCA 2005”), operates at the intersection of three pressures that the legislation was not designed to anticipate. First, the protected person (“P”) increasingly holds wealth, identity and social presence in digital form, ranging from cryptoassets and online banking to social media and cloud-stored documents. Second, the Lasting Power of Attorney (“LPA”) regime, intended as a flexible substitute decision-making mechanism, has expanded at a pace that has outstripped the supervisory infrastructure: over nine million LPAs are now registered with the Office of the Public Guardian (“OPG”) (OPG, 2024). Third, financial abuse of vulnerable adults — frequently perpetrated by attorneys, deputies or family members — has become both more sophisticated and more difficult to detect, particularly where digital channels are involved (Action on Elder Abuse, 2023; SCIE, 2023).
This essay argues that the CoP should indeed adopt a stricter approach, but the strictness must be doctrinally targeted rather than generically punitive. The current regime is not under-powered in principle: the MCA 2005, the Court of Protection Rules 2017 (“CoPR 2017”) and the OPG’s supervisory functions give the court a wide armoury. The defect lies elsewhere — in evidential thresholds for revocation under s.22 MCA 2005, in the doctrinal vacuum surrounding intangible digital assets, and in the institutional fragmentation between the CoP, the OPG and law enforcement. A stricter approach is justified in three specific respects: (i) a more interventionist evidential posture when financial abuse is alleged, displacing the current quasi-civil burden in favour of a precautionary standard; (ii) a doctrinal recognition of digital assets as a distinct category requiring bespoke best-interests analysis under s.4 MCA 2005; and (iii) tighter ex ante scrutiny of LPA instruments, with the CoP and OPG operating an enhanced “red-flag” review on registration. Conversely, strictness should not extend to the autonomy-protective core of the MCA, particularly the presumption of capacity in s.1(2) and the right to make unwise decisions in s.1(4). The argument therefore is not for a more paternalistic CoP, but for a more procedurally and evidentially demanding one in the narrow contexts where the current framework demonstrably under-protects.
The evaluative standard: what would “stricter” mean?
Any answer to the question requires a working definition of strictness. In this context, strictness can be understood along four axes: (i) evidential — lowering the threshold required to displace the presumption that an attorney is acting properly; (ii) supervisory — increasing the frequency and intensity of OPG oversight and CoP audit; (iii) remedial — accelerating revocation, replacement and recovery orders; and (iv) doctrinal — narrowing the latitude given to attorneys and deputies under the best-interests test, particularly in novel asset classes. The MCA 2005 deliberately rejects strictness along certain other axes, notably the presumption of capacity (s.1(2)) and the unwise decisions clause (s.1(4)). Any reform proposal must work with, not against, those autonomy-protective commitments (Donnelly, 2010; Series, 2022).
The Law Commission’s 2017 report Mental Capacity and Deprivation of Liberty deliberately did not reopen Part 1 of the MCA, and successive Public Guardian reports have emphasised volume management rather than doctrinal recalibration (Law Commission, 2017; OPG, 2024). That institutional reticence is itself part of the problem. Strictness is being demanded by reality — particularly by the growth of cryptoasset holdings among older adults and by post-pandemic increases in digitally-mediated abuse — but the framework continues to operate on a 2005 model of paper-based attorneyship.
Financial abuse: the evidential gap in s.22 MCA 2005
Section 22(3)(b) MCA 2005 empowers the CoP to revoke an LPA where the donee “has behaved, or is behaving, in a way that contravenes his authority or is not in P’s best interests, or proposes to behave in a way that would contravene his authority or would not be in P’s best interests”. The provision is, on its face, broad. The difficulty is its operation in practice. The court has consistently held that the threshold is high and that allegations must be proven to the civil standard on the balance of probabilities, with cogent evidence (Re Harcourt [2012] EWHC B23 (COP); Re DP [2014] EWHC B4 (COP)). Senior Judge Lush, in a series of revocation decisions, established what amounts to a working presumption that revocation is a last resort, particularly where family attorneys are involved (Re Buckley [2013] EWCOP 2965; Re J [2011] EWHC B21 (COP)).
The doctrinal architecture is autonomy-respecting but evidentially asymmetrical. The donor of an LPA has, by definition, lost the capacity to monitor the attorney; the OPG’s supervisory function over property and affairs attorneys is, in practice, complaint-driven rather than proactive (OPG, 2024); and third parties (typically family members) who suspect abuse must marshal documentary evidence from precisely the financial systems controlled by the attorney. The pattern is well known in the academic literature on elder financial abuse: the most effective abusers create no paper trail, and the absence of evidence becomes, in the CoP’s evidentially conservative approach, evidence of absence (Tilse and Wilson, 2013; Phillipson, 2021).
The case law illustrates the tension. In Re GM [2013] EWHC 2966 (COP), Senior Judge Lush revoked the appointment of deputies who had made gifts to themselves of over £230,000, but only after extensive forensic accounting. In The Public Guardian v CT and EY [2014] EWCOP 51 the court held that attorneys had acted outside their authority by making substantial gifts, but again the evidential reconstruction was retrospective and costly. The pattern is clear: by the time the CoP intervenes, the assets are frequently dissipated. Recovery actions are theoretically available, but the OPG has limited resources for civil recovery and the protected person rarely has the litigation capacity (in either sense) to pursue them.
The argument for stricter evidential treatment in this domain is therefore not that the current standard is doctrinally wrong, but that it is institutionally mismatched to the abuse it is meant to address. A precautionary approach — under which evidence of unexplained transactions, gifts exceeding the limits in Re Buckley, or refusal to provide accounts triggers a rebuttable presumption against the attorney — would not violate the civil standard, but would shift the evidential burden in a way that reflects the informational asymmetry. The Law Commission’s earlier Adult Social Care work (Law Commission, 2011) hinted at this direction without pursuing it; subsequent academic commentary has been more direct (Series, 2022; Ruck Keene et al., 2019). The CoP could implement such a shift within existing s.22 jurisprudence without legislative amendment, simply by treating certain categories of conduct as prima facie contravention of authority.
The limits of strictness: autonomy and proportionality
Any evidential recalibration must respect the proportionality structure of Article 8 ECHR, engaged whenever the CoP interferes with attorney appointments or family financial arrangements. The Supreme Court’s reasoning in N v ACCG [2017] UKSC 22 confirms that the CoP’s jurisdiction is bounded by what is in P’s best interests, not by what is administratively convenient. A stricter evidential approach must therefore be calibrated: it should attach to defined conduct (unexplained large transfers, undeclared gifts, refusal of accounting), not to a generalised suspicion of attorneys. The danger of over-strictness is a chilling effect on family caregivers willing to take on attorney roles — a concern repeatedly raised by the Office of the Public Guardian (OPG, 2024) and supported by empirical work on attorney experience (Tilse et al., 2015).
Digital assets: a doctrinal vacuum
Digital assets pose three distinct problems for the CoP: classification, access and valuation. Each exposes a gap in the MCA framework that strictness alone cannot fix, but which a more doctrinally sophisticated CoP could begin to close.
Classification: are digital assets “property” under the MCA?
The MCA 2005 speaks throughout of “property and affairs” without defining property. The orthodox position in English law, confirmed by the UK Jurisdiction Taskforce’s Legal Statement on Cryptoassets and Smart Contracts (UKJT, 2019) and endorsed obiter in AA v Persons Unknown [2019] EWHC 3556 (Comm), is that cryptoassets are capable of being property. The Law Commission’s Digital Assets: Final Report (Law Commission, 2023) went further, proposing recognition of a “third category” of personal property — neither things in possession nor things in action — to accommodate cryptotokens and similar intangibles. The Property (Digital Assets etc) Bill, introduced in 2024, codifies that recognition (Ministry of Justice, 2024).
For the CoP, this resolves the threshold classification question: digital assets fall within “property and affairs” and are therefore within the scope of LPAs and deputyships. But classification does not resolve management. The bespoke characteristics of cryptoassets — pseudonymity, irreversibility, custody via private keys — make them functionally unlike the bank accounts and real property that the MCA 2005 contemplated. An attorney who controls a private key effectively has unmediated power: there is no bank to refuse a suspicious transaction, no Land Registry to flag a transfer, and no realistic prospect of reversal once a transaction is confirmed on chain.
Access: the contractual and criminal law obstacles
A second problem concerns access to platform-based digital assets — email, cloud storage, social media, online subscriptions and custodial cryptoasset accounts. Most service providers’ terms of service prohibit account sharing and create non-transferable licences. The Computer Misuse Act 1990, particularly s.1, criminalises unauthorised access to computer material, and the question whether an attorney’s use of P’s credentials is “authorised” is doctrinally unsettled (Harbinja, 2017). The Law Commission’s preliminary work on digital assets and succession (Law Commission, 2023) acknowledged the problem without resolving it in the LPA context.
The standard LPA forms (LP1F for property and affairs) do not specifically address digital asset access, and the OPG’s guidance is generic (OPG, 2020). Donors who wish to grant explicit digital authority must do so by way of preferences and instructions, which are subject to the OPG’s strict severance powers under The Public Guardian’s Severance Applications guidance and case law such as Re XZ [2015] EWCOP 35 and Miles and Beattie v Public Guardian [2015] EWHC 2960 (Ch). The result is that even thoughtful donors struggle to embed enforceable digital authority into the standard form, while the great majority of LPAs say nothing about digital assets at all.
Best interests in a digital context
The s.4 MCA best interests test requires consideration of P’s past and present wishes, beliefs and values, and the views of those engaged in caring for P. Applied to digital assets, the test produces unusual questions. Should an attorney close P’s social media accounts to prevent reputational risk, or maintain them because they express P’s continuing identity? Should a volatile cryptoasset be liquidated to fund care, when liquidation crystallises a loss that P, while capacitous, accepted as part of a long-term investment strategy? Should family photographs in a cloud account be downloaded for relatives, or kept private?
The CoP has decided very few cases directly on point. The closest analogues come from the social media domain: in Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2 and the linked decision Re B [2019] EWCOP 3, Cobb J held that capacity to use social media and the internet is a discrete decision-specific question, separate from capacity to consent to sexual relations or to contact with others. The reasoning is doctrinally important: it confirms that the MCA’s decision-specific approach to capacity (s.2(1)) extends naturally into digital life. But the cases concerned capacity, not the substantive management of digital property by attorneys, and the gap remains.
A stricter doctrinal approach here would not mean restricting attorney powers, but requiring more explicit best-interests reasoning when digital assets are involved. The CoP could, by Practice Direction or via the Vice-President’s guidance, require attorneys and deputies dealing with cryptoassets or significant digital estates to (i) file a digital asset inventory on appointment or registration; (ii) seek specific authority before liquidating volatile holdings; and (iii) report on digital asset management in annual deputy reports. None of this requires legislative amendment; all of it could be effected under the existing rule-making powers in s.51 MCA 2005 and CoPR 2017 r.3.4.
LPAs: the structural weakness of ex ante scrutiny
The LPA regime, introduced in 2007 to replace the Enduring Powers of Attorney Act 1985, was deliberately designed to be accessible. The reform was driven by criticism that EPAs had been too easily abused because there was no formal registration until incapacity; the LPA model requires registration at the outset and a certificate provider to confirm understanding. Yet the safeguards remain largely formal. The certificate provider regime, governed by Sch.1 para.2 MCA 2005 and reg.7 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007, requires the provider to confirm that the donor understands the document and that there has been no fraud or undue pressure. In practice, certificate provision is frequently performed by acquaintances with limited training, and OPG investigations have repeatedly identified cases where the certificate provider had no meaningful interaction with the donor (OPG, 2024).
The Powers of Attorney Act 2023, currently being implemented, modernises the LPA process by enabling digital registration and tightening identification requirements (Powers of Attorney Act 2023; Ministry of Justice, 2023). The reform is welcome but limited. It addresses the mechanics of registration, not the substantive scrutiny of whether the LPA itself is appropriate. The OPG remains, in effect, an administrative registrar rather than a substantive gatekeeper. The CoP intervenes only on objection (under reg.13 of the 2007 Regulations) or on subsequent application, by which point the LPA may already have been operative for years.
A stricter approach would relocate some of the scrutiny burden from ex post revocation under s.22 to ex ante review on registration. Specifically:
- The OPG could be required to flag for CoP review any LPA where the donor is aged over a defined threshold and the attorney is not a family member or solicitor, or where the LPA contains unusually broad gifting provisions.
- The certificate provider regime could be tightened to require professional providers above defined asset thresholds, drawing on the Scottish model under the Adults with Incapacity (Scotland) Act 2000 s.16, which requires a solicitor or registered medical practitioner.
- The CoP could develop a body of jurisprudence on standard objections, providing the OPG with clearer doctrinal guidance on when to refer for judicial determination.
These reforms would mark a significant cultural shift in the LPA regime, from facilitation to scrutiny. The objection — that this would deter LPA uptake and increase costs — has weight, but is not decisive. The MCA’s Code of Practice (Department for Constitutional Affairs, 2007) emphasises that the LPA is intended to give effect to autonomous choice, and autonomous choice presupposes that the document reflects what the donor would have wanted had they understood its consequences. Where the design of the regime systematically allows attorneys to be appointed who would not have been appointed had the donor better understood the document, the LPA regime is not advancing autonomy; it is undermining it.
Institutional fragmentation: the CoP, the OPG and law enforcement
Even within existing law, the most significant obstacle to a stricter approach is institutional. The CoP, the OPG, the police and the Crown Prosecution Service operate in parallel silos. Financial abuse by an attorney can constitute the offence of fraud by abuse of position under s.4 of the Fraud Act 2006, but prosecution rates are low (Crown Prosecution Service, 2022; Williams, 2020). The OPG can refer cases for prosecution but has no investigatory powers comparable to those of regulatory agencies in the financial services sector. The CoP can make civil orders but cannot itself initiate prosecution.
The result is what Series (2022) describes as a “supervisory deficit”: the institutions individually have powers, but no institution has the combined power to detect, investigate and remedy abuse at scale. A stricter approach is therefore as much about institutional integration as doctrinal recalibration. The Law Commission’s Mental Capacity work touched on this in 2017 but did not propose substantive reform of the OPG’s role. The 2023 Public Guardian’s annual report acknowledged the volume pressures but did not propose institutional restructuring (OPG, 2024). Academic commentary has been more pointed: Ruck Keene et al. (2019) argue that the OPG’s quasi-regulatory status sits uncomfortably with both its facilitative function and its limited resources.
The case for stricter institutional integration is strongest in the digital and financial abuse contexts because the indicators of abuse — unusual transactions, sudden account changes, sale of cryptoassets — are precisely the indicators that financial regulators routinely monitor for other purposes. Information-sharing protocols between the OPG, the Financial Conduct Authority, banks (under the Banking Protocol) and the police could give the CoP much earlier and stronger evidence at the s.22 stage than is currently available. The Banking Protocol, operated by UK Finance, already enables branch staff to alert police to suspected financial abuse, and has reportedly prevented over £258 million of fraud since its 2017 launch (UK Finance, 2023). Extending the protocol to flag suspected attorney abuse to the OPG would be a relatively modest but high-impact reform.
Cryptoassets and the limits of recovery
The recovery of dissipated assets in CoP cases has always been difficult, but cryptoassets compound the problem. The CoP has well-established jurisdiction to order recovery of misapplied funds (Re GM [2013] EWHC 2966 (COP)). Where the funds have been moved into cryptoassets, however, the procedural and evidential difficulties multiply. Tracing through mixing services and exchanges resident in non-cooperating jurisdictions is expensive and frequently fruitless. The High Court’s developing jurisprudence on Bankers Trust orders and Norwich Pharmacal relief against cryptoasset exchanges (LMN v Bitflyer Holdings Inc [2022] EWHC 2954 (Comm); D’Aloia v Persons Unknown [2024] EWHC 2342 (Ch)) is helpful but operates in the commercial court, not the CoP.
A stricter approach would consider whether the CoP should develop, or be given by amendment to CoPR 2017, equivalent procedural tools tailored to vulnerable adults. The case for doing so is that the protected person’s vulnerability and incapacity are precisely the features that justify a lower threshold for disclosure orders and asset preservation. The case against is that the CoP’s institutional ethos is welfare-focused rather than commercial, and that commercial court expertise in cryptoasset tracing is unlikely to be replicated. The better view, on balance, is that the CoP should retain jurisdiction over capacity-related determinations but be empowered to refer recovery questions to the Business and Property Courts on a fast-track basis, with the protected person represented through the Official Solicitor. This would combine the substantive expertise of the commercial court with the protective ethos of the CoP.
Capacity to use digital assets: the decision-specific dilemma
A distinct but related question concerns whether P retains capacity to manage digital assets even where capacity for general financial management is lost. The MCA’s decision-specific approach (s.2(1)) means that capacity must be assessed in relation to the particular decision in issue. Yet “managing one’s digital affairs” is not a single decision; it is a continuous stream of micro-decisions (password resets, software updates, transaction confirmations) that interact with cognitive functions in ways that the standard functional test in s.3 may struggle to capture.
In Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2, Cobb J adopted a focused functional test for capacity to use social media: P must understand that information shared can be copied, retained and seen by strangers, and that contact with strangers carries risks. The framework is sensible but partial. It addresses the relational risks of digital life but not the financial risks — the susceptibility to investment scams, phishing and pressured cryptoasset transactions that disproportionately affect older adults (FCA, 2023). A stricter approach to digital capacity assessment would extend the Re A framework to financial digital decisions, recognising that susceptibility to scam-induced transactions can persist in individuals whose general financial capacity has not been formally lost.
The doctrinal danger here is over-extension. The presumption of capacity in s.1(2) is the central commitment of the MCA, and it is reinforced by the unwise decisions clause in s.1(4). If “capacity to resist scams” became a standalone capacity question, the risk is that older adults’ decisions would be policed in ways that are paternalistic and inconsistent with the Article 12 CRPD framework’s emphasis on supported decision-making (Series, 2015; Quinn, 2010). The better approach is to maintain the existing framework but require attorneys and deputies to take active steps — multi-factor authentication, transaction limits, third-party monitoring — to reduce P’s exposure to digital financial risk. The CoP can, and should, treat the failure to take such steps as evidence of failure to act in best interests under s.4.
Reform options compared
Three broad reform packages are available:
Package 1: doctrinal recalibration within existing law
This approach would keep the MCA 2005 intact but ask the CoP, through Practice Direction and developing jurisprudence, to (i) treat unexplained large transactions by attorneys as prima facie contravention of authority under s.22; (ii) require explicit best-interests reasoning for digital asset management; and (iii) develop a digital capacity jurisprudence extending Re A to financial decisions. The strength of this approach is that it can be implemented quickly and does not require Parliamentary time. The weakness is that it relies on case-by-case development and may not generate sufficient doctrinal coverage given the small number of contested cases that reach the CoP.
Package 2: targeted legislative amendment
This approach would amend the MCA 2005 and the 2007 Regulations to (i) introduce statutory red flags requiring CoP review of certain LPAs on registration; (ii) extend the certificate provider regime to require professional providers above defined thresholds; and (iii) give the OPG enhanced investigatory powers, including information-sharing protocols with banks and the FCA. The strength is comprehensive coverage; the weakness is the risk of over-formalisation deterring LPA uptake.
Package 3: institutional restructuring
The most ambitious approach would restructure the OPG as a properly resourced regulatory body, with proactive supervision powers analogous to those of the FCA in financial services. This would require primary legislation and significant additional funding. The strength is structural; the weakness is political feasibility and the risk that the OPG’s facilitative function (helping families navigate the LPA process) becomes subordinated to its enforcement function.
On balance, the strongest reform package is a combination: doctrinal recalibration in the short term (Package 1), supported by targeted statutory amendment in the medium term (Package 2). Full institutional restructuring (Package 3) may be desirable but is not necessary to achieve meaningful protection. The argument for strictness is not an argument for transformation; it is an argument for the CoP and OPG to take seriously the protective dimension of their existing jurisdiction.
Counter-arguments: the case against stricter intervention
Three counter-arguments deserve direct engagement.
First, the autonomy objection. The MCA 2005 was designed as an autonomy-enhancing statute. Stricter intervention risks restoring the paternalistic framework of the Mental Health Act 1983 (then the principal source of property and affairs jurisdiction over incapacitated adults). The objection has force but is overstated. The autonomy protected by the MCA is the autonomy of the donor when capacity exists, not the autonomy of attorneys to act in ways the donor would not have sanctioned. Stricter scrutiny of attorneys protects, rather than undermines, donor autonomy. The CRPD framework (Article 12) supports this: supported decision-making is consistent with vigorous oversight of those who act on behalf of others (Series, 2015).
Second, the family caregiver objection. Most attorneys are family members acting in good faith. Stricter oversight risks discouraging family caregiving and pushing more cases towards professional deputyship, with associated costs. This objection has weight in the LPA registration context but does not justify under-protection at the abuse end. The empirical work on family attorneys (Tilse et al., 2015) suggests that family attorneys generally welcome clearer guidance and oversight; the resistance to oversight comes disproportionately from attorneys whose conduct is questionable.
Third, the institutional capacity objection. The CoP and OPG are already under significant volume pressure. Stricter scrutiny without additional resources risks generating backlogs and procedural delay that themselves harm vulnerable adults. This is the most serious objection. It supports the case for reform sequencing — doctrinal recalibration first, statutory amendment with accompanying resource commitments second — rather than against reform per se.
The CRPD dimension
The United Kingdom’s obligations under the UN Convention on the Rights of Persons with Disabilities (2006) frame the entire debate. Article 12 CRPD requires recognition of legal capacity on an equal basis with others and supported decision-making rather than substituted decision-making. The Committee on the Rights of Persons with Disabilities, in General Comment No.1 (2014), interpreted Article 12 as requiring the abolition of substituted decision-making regimes including, on its terms, deputyship and arguably LPAs in their current form.
The UK government has not accepted that interpretation, and the Joint Committee on Human Rights (JCHR, 2008; House of Lords Select Committee, 2014) has consistently distinguished between abolishing substituted decision-making and reforming it to embed supported decision-making principles. The point for the present argument is that a stricter approach to attorneys and deputies is not in tension with the CRPD; it is, on the better view, required by it. The CRPD’s concern is not that decisions are made by others but that those decisions reflect the will and preferences of the person, and that the system contains adequate safeguards against abuse. Stricter scrutiny of attorneys is precisely what Article 12(4) CRPD demands.
Synthesis: a calibrated strictness
Pulling the threads together, the case for stricter CoP intervention is strongest where three conditions coincide: (i) the protected person is at heightened risk because of the nature of the asset (digital, volatile, irreversible); (ii) the attorney’s conduct displays one or more recognised abuse indicators (large unexplained transactions, gifts beyond Re Buckley limits, refusal of accounts, sale of cryptoassets); and (iii) the institutional framework is not generating timely or effective remedy.
In these circumstances, the CoP should:
- Apply a precautionary evidential approach under s.22, treating defined conduct as prima facie contravention of authority and shifting the practical evidential burden to the attorney to justify the transaction;
- Require attorneys and deputies to file digital asset inventories and seek specific authority for cryptoasset liquidation, treating failure to do so as evidence relevant to best-interests analysis under s.4;
- Develop, in conjunction with the OPG, a system of ex ante red-flag review of LPAs presenting risk indicators on registration;
- Coordinate with the commercial courts and law enforcement for recovery of dissipated assets, retaining capacity jurisdiction while drawing on commercial expertise for tracing.
What the CoP should not do is loosen the presumption of capacity, restrict the unwise decisions principle, or adopt a generally interventionist posture that treats attorneys as presumptively suspect. The strictness must be doctrinally targeted, evidentially calibrated and institutionally supported. Stricter, in this sense, means more demanding where demanding is warranted, not more intrusive across the board.
Conclusion
The question whether the Court of Protection should adopt a stricter approach to digital assets, LPAs and financial abuse admits of a qualified affirmative. The current framework is not under-powered in principle; the MCA 2005 and its accompanying procedural architecture give the CoP wide jurisdiction. The defect is that the framework’s evidential thresholds, doctrinal vocabulary and institutional support were designed for an analogue world of bank accounts and bricks-and-mortar property, and have not been doctrinally updated for the realities of attorneyship in 2025. The result is an under-protective system in the specific contexts where strictness is most warranted: where digital assets are at stake, where abuse indicators are present, and where institutional fragmentation prevents effective response.
The strongest reform pathway is calibrated rather than wholesale. The CoP should, through its existing powers and developing jurisprudence, lower the evidential threshold for s.22 revocation where abuse indicators are present; require explicit best-interests analysis for digital assets; and, through the OPG, implement ex ante red-flag scrutiny of LPAs presenting risk indicators. Targeted statutory amendment should follow, particularly in respect of the certificate provider regime, OPG investigatory powers, and digital asset access. Full institutional restructuring may be desirable in the longer term but is not necessary for meaningful protection.
What unifies these proposals is a single doctrinal commitment: that the autonomy the MCA protects is the autonomy of the donor, not of those who act on the donor’s behalf. A stricter approach to attorneys, deputies and the digital infrastructure through which they operate is not a retreat from the MCA’s autonomy-protective core. It is the most coherent way of giving that core practical effect in a world the 2005 Parliament did not foresee.
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