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New Clarification from the Court of Protection about Lasting Powers of Attorney

View profile for Claire Clarke
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There has been a recent case relating to Lasting Powers of Attorney (LPAs) that emphasises the difficulties that can be involved with the drafting of these documents.

The Office of the Public Guardian (OPG) is a government body that monitors the activities of attorneys and deputies who look after people who lack the mental capacity to manage their own affairs.  One of its key functions is to register new Lasting Powers of Attorney (for both property and affairs and health and care decisions).  This is a key requirement and part of the process and Lasting Powers of Attorney cannot be used until they have been registered.  Current registration times for straightforward registration applications, where there are no issues, maybe anywhere between 5-6 months. 

The OPG has recently bought a case before the Court of Protection to clarify a number of issues that have arisen relating to the drafting of LPAs.  If a donor has completed their LPAs in such a way that are inconsistent with the law under the Mental Capacity Act 2005, the OPG has powers to sever those particular provisions or reject the application entirely.

There were various issues that were considered by the Court, but the key points that will be of interest to those considering making LPAs are as follows:

1).        You cannot appoint a "lead" attorney when you have appointed attorneys to act on a joint and several basis.  They are all equal.

2).        You cannot give specific attorneys defined areas to deal with or include restrictions in this respect.

3).        You cannot appoint attorneys to act on a majority basis. 

4).        You can appoint a replacement attorney to act for a replacement attorney. 

A solicitor and other professionally qualified practitioners that prepare these documents regularly will (or should) be aware of the above.  However, it is perfectly understandable that a lay person completing the forms either using the postal system or online, may misunderstand the position having review the forms and raft of guidance available.  Very often, if a donor is seeking to put in place more complex or arrangements, it signifies that they have concerns about their proposed attorneys' role generally and how they may act together.  If provisions are put in place that do not comply with the Mental Capacity Act 2005, the OPG has powers to reject the application, remove certain provisions and allow the forms to remain without those provisions or refer the matter to Court.  These outcomes can all substantially delay the process. 

Given the nature and effect of these documents, it is always worth investing in the appropriate advice to ensure that your arrangements will be compliant with the Mental Capacity Act, that the applications will be processed as quickly as efficiently as possible and that you have a workable arrangement that will meet with your needs and will be appropriate for the attorneys that you appoint. 


If you need legal advice regarding any Wills, Trusts & Probate matters please contact our specialist Wills, Trusts & Probate team 

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