AA Legal Documents

Lasting power of attorney

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Contents

Giving notice

Before you can register a lasting power of attorney (LPA), you have to give notice to all the 'people to be told' (previously referred to as 'named persons') listed in the LPA. These are the people whom the person who made the LPA (the 'donor') decided should be notified about the intention to register.

There is a form that should be used to notify all the 'people to be told', called 'LPA 1 - Notice of intention to apply for registration'.

These 'people to be told' have the opportunity to object to the registration of the LPA within 5 weeks of receiving notice. If there are no 'people to be told' you can proceed with the application to register (see below).

You may proceed with your application to register the LPA as soon as you have notified all the 'people to be told'. You do not need to wait for them to decide whether they want to object.

For more information, read the Notice of intention to register section.

Register a lasting power of attorney

The only people who can register an LPA are the donor or the attorney(s) named in the LPA.

To register an LPA, an application form must be completed and sent to the Office of the Public Guardian (OPG). This application form is entitled 'LPA 2 - Application to register an LPA'.

If you wish to register both a property and financial affairs LPA and a health and welfare LPA, you must register these separately by completing the application form twice. You will need to send the original of each LPA, together with its LPA 2 application form to the OPG. A fee will be payable for each application (see below).

When the OPG receives an application to register an LPA, it must notify the donor and any attorney(s) who are not applying to register the LPA. If the LPA is being registered by the donor, he or she will notify the attorney(s).

Multiple attorneys

If there is more than one attorney listed in the LPA, it is important to check how they have been appointed to act so that you may establish whether they must all apply together to register an LPA.

Attorneys may be appointed to act in any one of the following ways:

1. Jointly – This was previously referred to as 'together'. This means that all the attorneys must, at the same time and in the same LPA 2 form, apply to register the LPA. Where the attorneys have been appointed to act jointly, the LPA will fail to have any further effect in the event that one of the appointed attorneys is unable to take up or continue with his or her appointment as an attorney. This could happen if one of the attorneys dies, is unable or unwilling to act as an attorney or (where it is a property and financial affairs LPA) any of the attorneys become bankrupt. If this happens, the LPA can no longer be used.

2. Jointly and severally – This was previously referred to as 'together and independently'. This means that the attorneys can, at their own choice, act jointly, having all agreed on a particular action to be taken, or they can make decisions without consulting each other. If the attorneys are appointed like this, they do not all have to apply together to register the LPA. One or more of them can apply. There is also no risk that the LPA would fail if one of the attorneys becomes unable or unwilling to act as an attorney. However, this might not present as many safeguards for the donor.

3. Jointly in some matters and jointly and severally in respect of others – This was previously referred to as 'together in respect of some matters and together and independently in respect of others'. This means that the donor has, in their LPA, specified which actions the attorneys need to take jointly and which decisions they may make either on their own or after having agreed with each other. In this case the attorneys do not have to apply together to register the LPA, unless the donor specified this.

Replacement attorneys

You can choose people to replace your attorney(s) if they are later unwilling or unable to act. These people are called replacement attorneys. You don't have to choose replacements, but it could prevent your LPA from failing. If there is no replacement, an LPA will become invalid if a sole attorney becomes unable to act, or where one of a group of attorneys, appointed to act jointly, becomes unable to act.

When you should apply to register

Lasting powers of attorney cannot be used until after they are registered by the OPG. The LPA can be registered at any time after it has been completed and signed.

It is advised that you register the LPA as soon as possible in order to avoid the delays in the registration process. There is a 4-week waiting period from the time that the OPG receives the application for registration to when the LPA may be registered. Since an LPA cannot be used until after it is registered, this could mean that the attorneys might not have the authority to act on behalf of the donor in urgent matters at the time when the donor loses mental capacity.

If the attorney(s) need to make any urgent decisions on behalf of the donor before the LPA is registered, they will need to apply to the Court of Protection (COP) for an order authorising them to take that particular urgent decision. A fee will be payable to the COP for this application. It is therefore recommended that the LPA is registered early so that it may be ready when the attorney needs to use it.

When the document comes into effect

The attorney(s) for the 'Lasting power of attorney - property and financial affairs' can begin using their powers in the LPA as soon as the document is registered. However, if the donor still has capacity when the document is registered, then the attorney(s) must consult the donor before making any decisions.

The attorney(s) for the 'Lasting power of attorney – health and welfare' cannot begin acting for the donor until after the donor has lost capacity. Therefore, it is particularly advantageous to register this document in advance so that it will be ready in case the donor loses mental capacity.

Fees

There is a fee payable when you apply to register an LPA. The applicable fees may change annually. You should therefore always check the current applicable fee with the OPG before submitting your application.

There is also the possibility to apply to the OPG for an exemption, postponement or remission of the registration fee. Application forms for this may be obtained from the OPG website or by post.

Contacts

Office of the Public Guardian

For more information, visit the Office of the Public Guardian.

Court of Protection

For more information, visit the Court of Protection.