Even when a Lasting Power of Attorney (LPA) has been signed, witnessed and dated by all parties, this is not the end of the journey. Before the LPA can be used, it must also go through a process of registration with the Office of the Public Guardian (OPG).
There are two types of Lasting Power of Attorney: one for Health and Welfare which enables your Attorney to make decisions in relation to medical treatment and care; and one for Property and Finance, relating to things such as withdrawing money, paying bills and selling property.
Both types of power need to be registered before they can be used. In addition, for the Health and Welfare LPA to come into effect, the donor must be unable to communicate their wishes regarding medical treatment and care before the Attorneys can step in and make such decisions for them. This may be of comfort to people who are reluctant to register their powers for fear of 'handing over' authority to a third party whilst they are able to make decisions for themselves.
Ideally, an LPA will be registered as soon as it is made in order that it is ready and waiting to be used as and when needed. The added benefit of having registered a Property and Finance LPA is that this can be used in a variety of circumstances, for example not only if the donor becomes mentally incapacitated but also if they are struggling with perhaps mobility, tiredness or a physical illness. Under the registered LPA the donor can pass some responsibility over to their Attorneys temporarily and then subsequently assume control again if they wish.
Of course we always hope that we will remain healthy and capable, and that the documents will never be needed. When enjoying good health, it is easy to ignore or overlook the importance of having a document which would be sorely needed when frailty, illness or incapacity becomes an issue.
There are several reasons why it is not only desirable but strongly advisable to register LPAs as soon as possible after signing them:
- The process of registering the documents with the OPG currently takes around 8 - 10 weeks. If the document is registered straight away when there is no immediate need to rely on it, this in itself would not present an issue as the registration can be carried out with no urgency.
However, imagine a situation where the document is left unregistered and the donor suddenly requires the Attorneys' assistance: this limbo period of perhaps up to almost 3 months could be catastrophic. During this time, the Attorneys are not recognised as having any legal authority to deal with the donor's affairs; and if the donor is incapacitated or otherwise unable to deal with matters, the Attorneys cannot take any action or make any decisions during this time. Bills can therefore be left unpaid, interest can accrue, and even more seriously the Attorneys will not be able to deal with important matters in relation to care and welfare whilst they await the registered LPA to be returned to them.
This situation can be avoided if the documents were registered pre-emptively months or years previously and can simply be taken out of storage to be used as soon as needed.
- The OPG has stated that out of the LPA documents they receive for registration, around 15% contain an error of some kind which will lead to the application being rejected.
In the first instance this will of course prolong the registration process and therefore compound any issues that have already arisen by having to await the LPAs being registered. In addition, and perhaps most importantly, the process will not be able to continue after this stage if the donor has already lost 'mental capacity'. This is because individuals must be deemed to have the requisite capacity in order to be able to enter legally binding documents. Without such capacity, the donor will not be able to make the necessary amendments to the rejected LPA in order that the registration can proceed, nor will they be able to create a new LPA to replace the original and defunct document containing the errors.
This would then leave the donor without any protection at all under the LPA, with the only option left to the Attorneys to then apply to the Court of Protection for a Deputyship order. This is both a long and costly process: upwards of a thousand pounds and a timescale of six months to a year.
If the document is registered directly after execution, then any errors can be dealt with at this stage and sorted out immediately whilst there is no issue as to capacity.
The costs of registration can be discouraging; however does the cost of registering a document which you may (hopefully) never need outweigh the financial and emotional costs of Attorneys being unable to assist you at the time when you need it most?