Registering A Lasting Power Of Attorney

Registration Of Lasting Powers Of Attorney

All lasting powers of attorney (LPA) must be registered before they can be used. This offers some protection for:

• The donor – the person allowing decisions to be taken on their behalf if they lose mental capacity.
• The attorneys – the people to whom the donor is giving the power to take those decisions. Importantly, the UK definition of ‘attorney’ is very different from the US meaning of the word. In the UK, an attorney is simply someone who is legally empowered to act on your behalf – it does not mean they’re a qualified lawyer!

Every LPA should be registered with the Office of the Public Guardian, which maintains registers, investigates complaints and also supervises court-appointed deputies.

Why All Lasting Powers Of Attorney Should Be Registered

LPA registration is necessary before the documents gain any legal power under the Mental Capacity Act 2005. Here are some key reasons for that requirement:

• Safeguarding against abuse and fraud – registering LPAs provides a level of oversight to ensure that attorneys act in the best interests of the donor. This helps to prevent instances of abuse or financial exploitation by attorneys. This protection is especially crucial when the donor lacks the mental capacity to take decisions.
• Protecting vulnerable individuals – LPAs are often used when individuals are vulnerable due to age or illness. Registration helps to ensure that their interests are protected and that they receive appropriate care and support.
• Transparency and accountability – registration makes the existence of the LPA a matter of public record. This enables third parties (such as banks, healthcare providers or social services) to verify the authority of the attorneys to act on the donor’s behalf. It also allows interested parties to raise concerns if they suspect any wrongdoing by the attorneys.
• Facilitating access – many healthcare providers and financial institutions require a registered LPA before allowing attorneys to make decisions on behalf of the donor. Registration streamlines this process and ensures that attorneys can access the necessary resources to provide for the donor’s needs.
• Legal protection for attorneys – registration provides a clear and recognised legal document that helps attorneys to interact with institutions and individuals.
• Establishing the donor’s mental capacity – the registration process includes a certificate provider who must confirm that the donor had the mental capacity to create the LPA when it was executed. This helps to ensure that LPAs are registered only when the donor had the necessary capacity to make informed decisions.
• Preventing disputes and challenges – the registration process can identify and resolve potential issues with the LPA before they lead to disputes among family members or other interested parties.

Delaying Registration Of A Lasting Power Of Attorney

It is perfectly legal to prepare an LPA, to get everyone signed up and then not register it. There is a 12-month window for the attorneys to sign after the certificate provider signs.

The certificate provider is an independent person chosen by the donor. It could be someone the donor knows well. The provider must be aged 18+ and have been known to the donor for at least two years. They cannot be a relative of the donor.

Or the provider could be a professional such as a solicitor, GP, social worker or independent mental capacity advocate.

The certificate provider will confirm that the donor:

• has mental capacity
• is making the LPA of their own free will
• has full knowledge and understanding of what they are doing.

So why would someone want to delay registration for up to 12 months? The donor or their attorneys may feel that registration can take place when the need is more pressing.

But this is normally a bad idea because it takes months for the Office of the Public Guardian to register an LPA. And during that time, the vulnerable person’s condition may worsen – they may need important decisions to be taken on their behalf.

So preparing an LPA, getting it signed by all parties and the certificate provider – but not registering it – could result in an extended delay that leaves no-one able to protect the donor’s interests.

How Long Does It Take To Register A Power Of Attorney?

At the time of writing this blog post, registration of LPAs was taking around five to six months. The Office of the Public Guardian website says “up to 20 weeks”.

Registration times lengthened during Covid lockdown for obvious reasons. Unfortunately, registration times have yet to return to pre-pandemic levels.

Registering Lasting Powers Of Attorney Online: Beware The Risks!

The government is “streamlining” lasting powers of attorney with digitalisation intended to speed up processing and reduce human error.

Changes are in progress: the Powers of Attorney Act 2023 received the Royal Assent on 18 September 2023. The intention is to sweep away the old paper-based system.

In truth, the new Act is the latest phase of an online evolution that has been taking place over a number of years:

• In 2019, the OPG launched a Track My LPA service – enabling people to monitor progress online.
• In July 2020, the OPG unveiled a Use A Lasting Power Of Attorney Service – enabling a donor or attorney to give organisations an access code to view a summary of an LPA.

And you can now register an LPA online but this DIY process has its pros and cons…

On the plus side, it encourages people to make their LPAs many years before they are ever likely to need one – this would resolve future concerns about mental capacity.

However, some elderly people may not be comfortable about the online registration process.

They may be under pressure from a family member or third party. And if the donor’s memory, insight and understanding is not what it once was, the ongoing push for digitalisation brings with it with the worrying possibility of a surge in financial abuse.

Giving anyone the ability to deal with your life savings is not a step to be undertaken lightly – the donor will have to live with the consequences of any dishonesty by their chosen attorney(s).

Why You Should Always Use A Solicitor To Register Your Lasting Power Of Attorney

It is always a wise idea to:

• instruct an experienced wills and probate solicitor to draft LPAs
• keep the solicitor central to the registration process.

This ensures that a qualified and insured professional is overseeing the preparation of these vital documents and their registration. The solicitor will be able to discuss whether it is appropriate to include any checks and balances, and whether additional powers or conditions should be included.

It also reduces the likelihood of subsequent arguments about the validity of the documents and the capacity of the donor at the point of signature.

Further Reading On Lasting Powers Of Attorney

• Can I Help My Mum Or Dad To Change Their Will? Can A Power Of Attorney Change A Will? Read more…
• Busting Myths About Lasting Powers Of Attorney. Read more…
• Statutory Wills: How To Change Someone’s Will If They’ve Lost Mental Capacity. Read more…
• How Can A STEP Wills And Probate Solicitor Help Me? Read more…

Get Expert Legal Advice

For specialist legal advice about drafting and registering powers of attorney, contact Coles Miller Partner Anthony Weber, Head of Wills and Probate.

Anthony has more than 25 years’ experience as a solicitor and has been a Partner at Coles Miller since 2014. He is:

• a member of the Law Society’s Private Client Section (formerly the Probate Section)
• accredited by Solicitors for the Elderly
• on the steering group of Broadstone Stepping Stones, a Dementia Friends Group (an Alzheimer’s Society initiative)
• a trustee of Growing Compassionate Communities, a local charity with the primary aim of helping people with dementia to enjoy a better quality of life and greater social inclusion.

Anthony is based at Coles Miller’s Fleetsbridge office.