If you have been appointed as attorney in an enduring power of attorney (EPA), you must give notice of your intention to apply for registration to the donor (i.e. the person who has made the power of attorney), the other attorneys (if any) and the relatives prescribed by the Mental Capacity Act.
However, before registering a lasting power of attorney (LPA) notice will only need to be given if the donor listed 'people to notify'.
This notice requirement is aimed at safeguarding the interests of the donor.
An LPA can only be effective when the document is registered. However, before registration can go through, all those listed (if any) in the LPA as 'people to notify' (previously referred to as 'named persons' and 'people to be told') must first be given notice of the intention to do so. These are the people whom the donor wanted to be notified. These 'people to notify' have 3 weeks from the date of the notification to object to the registration. This functions as a safeguard for the donor. Relatives are not entitled to notice unless they are listed as 'people to notify'.
The application to register the LPA can be made as soon as all of the 'people to notify' (if any) have been notified. There is no need to wait for them to decide whether they want to object.
The person(s) applying to register the LPA must send notice of their intention to do so to each 'person to notify' using the form 'LP3 - Notice of intention to register an LPA' (LP3)'. Either the donor or the attorney(s) named in the LPA can apply to register the LPA.
The LP3 can either be posted or delivered by hand to each of the 'people to notify'. The date that the LP3 is posted or handed over will be treated as the date of notification.
The OPG will send notice to the donor and any non-registering co-attorneys (if the attorney(s) are registering) or to the attorney(s) (if the donor is registering) to inform them that an application for registration has been received. In both instances, they will be given the opportunity to object to the registration.
Only the attorney(s) listed in an EPA can register it. Before registration can go through, the attorney(s) must give notice to all those who require it under the Mental Capacity Act (MCA)using the 'EP1 PG - Notice of intention to register an EPA' form.
The donor and any non-applying co-attorney(s) must be notified. At least 3 of the donor's relatives must be notified. The MCA prescribes a priority order in which the relatives must be notified. The order is based on how closely related the relatives are to the donor and categorises them into different classes:
1. Donor's spouse or civil partner
2. Donor's children (including adopted children, but not step-children)
3. Donor's parents
4. Donor's brothers and sisters, whether of the whole or half blood
5. The widow or widower or surviving civil partner of any deceased child of the donor
6. Donor's grandchildren
7. The children of the donor's brothers and sisters of the whole blood
8. The children of the donor's brothers and sisters of the half blood
9. Donor's uncles and aunts of the whole blood
10. The children of the donor's uncles and aunts of the whole blood
To work out which 3 relatives must be notified, you must use the prescribed order in the MCA, starting with the donor's spouse or civil partner. If there is no spouse or civil partner, then you move on to the next class, which is the donor's children. If there are no children, or not enough children to satisfy the requirement that at least 3 relatives are to be notified, then you move on to the next class in the given priority order. You repeat this process until you have established the first 3 relatives who must be notified.
There are 2 exceptions to the notification rule - the first resulting in less than 3 relatives requiring notification, while the second may result in more than 3 relatives being notified.
Where there are less than 3 relatives alive who fall within the classes set out in the MCA, you only have to notify as many relatives as are alive.
For example, if the donor is only survived by their spouse and a single parent, then only their spouse and parent need to be notified; resulting in a total of 2 relatives who need notification.
Also, if the registering attorney falls into a class of relatives that need to be notified, they don't have to notify themselves although they still count as one of the 3 people notified. For example, if the registering attorney is the only child of the donor, who only has a spouse and one parent still alive, the attorney only needs to send 2 notifications.
If in this last example the registering attorney is the donor's only child and the donor has no other relatives, nobody will need to be notified. In all cases where nobody has been notified the OPG will first make enquiries before registering the EPA.
If one person in a particular category must be notified, then all persons in that category must be notified and that could result in more than 3 people in total to notify. This exception applies where:
So, for example, if the donor has a spouse, 1 child, 10 siblings and their parents are dead, then all 10 siblings must be notified; giving a total of 12 relatives in all who must be notified.
There are some situations where relatives, who ordinarily would be entitled, are not entitled to be notified. This applies when:
If this is the case, the attorney(s) needs to notify the Office of the Public Guardian of the inability to give notice so that this fact is properly recorded and taken into account.
In addition, there may be certain situations where an attorney does not want to notify a relative. If this is the case, you will have to apply to the Court of Protection (COP). The Court is most reluctant to deprive relatives of their legal entitlement to notice unless there are exceptional circumstances or if it is satisfied that serving notice would be undesirable, impracticable or serve no useful purpose.
There may be instances where it will be inappropriate to give notice to the donor because it will cause too much distress. If this is the case, an application should be made to the COP before applying to register. The COP will then consider whether to dispense with notice.
Notice must be given personally to the donor, whilst relatives must be given notice by first class post and all the EP1 PG notices must be sent within 14 days of each other.
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