Lasting power of attorney

Lasting power of attorney

Contents

Giving notice

Before you can register a lasting power of attorney (LPA), you have to give notice to all the 'people to notify' (previously referred to as 'named persons' and 'people to be told') listed in the LPA. These are the people whom the donor wanted to be notified about the intention to register. This is done by sending form 'LP3 - Notice of intention to register an LPA' to each of the 'people to notify'. They then have the opportunity to object to the registration of the LPA (Lasting power of attorney) within 3 weeks of receiving the notice.

You may proceed with your application to register the LPA as soon as you have notified all the 'people to notify'. You don't need to wait for them to decide whether they want to object. If there are no people to notify you can apply to register the LPA as soon as it has been properly signed.

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.

If the LPA was made using the pre-1 July 2015 paper forms LPA114, LPA117, LPA PA or LPA PW (and it was properly signed before 1 January 2016) then the application form to be used is the 'LP2 - Register your lasting power of attorney' (LP2). 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 LP2 application form twice. You will need to send the original of each LPA, together with its LP2 application form to the Office of the Public Guardian (OPG). A fee will be payable for each application (see below).

However, if the LPA was made using the LP1F or LP1H forms then the application form is part of the LPA and no additional form needs to be completed. In this case you will only need to send the original of each LPA to the OPG together with the fee for each.

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, the OPG will notify the attorney(s). These people then have 3 weeks in which to raise any objections.

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 as they may need to apply together.

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 apply to register the LPA. Where the attorneys have been appointed to act jointly, the LPA will fail to have any further effect if one of the appointed attorneys can't start or continue as an attorney. This could happen if one of the attorneys dies, is unable or unwilling to act as an attorney or in the case of a property and financial affairs LPA any of the attorneys become bankrupt. If this happens, the LPA can no longer be used, unless one or more replacement attorneys were appointed that can take the place of all the joint attorneys.

2. Jointly and severally

This was previously referred to as 'together and independently'. This means that the attorneys can choose to sometimes act jointly, having all agreed on a particular action, and sometimes by themselves without consulting each other. If appointed like this one or more of the attorneys can apply to register the LPA. There is also no risk that the LPA would fail if one of the attorneys becomes unable or unwilling to act, as the other attorneys can continue to act as usual.

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 don't have to apply together to register the LPA, unless the donor specified this.

Replacement attorneys

You can choose people to replace your original attorneys if any of them become 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 can't be used until they are registered by the OPG. The LPA can be registered at any time after it has been completed and properly signed.

It is advised that you register the LPA as soon as possible in order to avoid the delays in the registration process. The OPG has to notify any donor and attorney who are not applying that an application has been received. There is a 4-week waiting period from the time that the OPG gives the last notice before the LPA may be registered. This delay could mean 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

Depending on what the donor specified the attorney(s) in a 'Lasting power of attorney for property and financial affairs' can begin using their powers either as soon as the document is registered or only once the donor has lost mental capacity to deal with such affairs. If the donor still has capacity when the document is registered and the attorney(s) are entitled to act, they must consult the donor before making any decisions.

The attorney(s) in a 'Lasting power of attorney for health and welfare' can only begin acting once the donor has lost capacity.

Fees

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

It's possible to apply to the OPG for an exemption or remission of the registration fee using the form LPA120A - Application for exemption or remission of LPA or EPA application fees.