A lasting power of attorney (LPA) is a legal document which allows a donor to appoint one of more persons, known as attorneys, to make decisions for them. These decisions can be related to health and welfare or property and finance. The donor is the person who gives authority to the attorney to act on their behalf. An LPA can be registered with the Public Guardian at any time, and will be effective once registered. This will provide the attorney with the right to make decisions for the donor. An LPA can be used even if the donor has not lost capacity.
An enduring power of attorney (EPA) is another legal document, which must be signed by both the donor and the attorney prior to the 1 October 2007. An EPA can no longer be amended or drafted, however, existing EPAs are still valid. As opposed to an LPA, an EPA will only relate to decisions regarding property and finance. An EPA will be valid once signed by both the donor, the attorney and the witnesses, however, it will only come in to effect once the donor has lost capacity. The EPA must be registered with the OPG to come in to effect.
Registering a LPA will result in the attorney being able to make decisions in the best interests of the donor. However, it is possible for objections to be raised, before the LPA is registered, to stop it becoming effective. There are four different forms which can be submitted, in order to object to the registration of the LPA.
The first form is referred to as an LPA006, which can be completed by the donor themselves. This form gives the donor the opportunity to provide their reasons for the objection to the LPA. The LPA006 must be submitted to the Office of the Public Guardian within three weeks of receiving notification of the registration.
The second form, referred to as an LPA007, can only be completed by the attorney themselves or a named person who has been notified. This form allows for objection against the LPA based on “factual grounds”. The factual grounds are as follows:
- The donor is bankrupt or interim bankrupt;
- The attorney is bankrupt or interim bankrupt;
- The attorney is a trust corporation that has been wound up or dissolved;
- The donor is dead;
- The attorney is dead;
- There has been a dissolution or annulment of a marriage or civil partnership between the donor and attorney;
- The attorney lacks capacity to act;
- The attorney has disclaimed appointment.
The third form, referred to as an LPA008, can be completed by the attorney or a named person who has been notified of the registration. The LPA008 form allows the person making the application to object to the registration of the LPA based on “prescribed grounds”. The prescribed grounds are as follows:
- The LPA isn’t legally correct (for example, you don’t believe the donor had the mental capacity to decide the make an LPA);
- The donor cancelled their LPA when they had capacity;
- The donor was pressured in to making the LPA;
- You suspect fraud;
- An attorney is acting against the donor’s best interests.
When submitting an LPA008 to the Office of the Public Guardian, the person applying (if they are the intended attorney or a named person who has been notified), will also be required to submit a COP 7 to the Court of Protection. A COP 7 is the application to object to the registration of an LPA.
For any other persons who wishes to object to the registration of an LPA, a COP 1 form will need to be submitted to the Court of Protection.
The forth form is only applicable if the attorney has applied for an EPA to be registered. An EP3PG form can be completed by the donor or their relatives who have been notified of the registration.
When objecting against the registration of an EPA, one of the following reasons must apply:
- The EPA isn’t legally correct (you believe the donor lacked mental capacity to decide to make an EPA);
- The donor cancelled their EPA when they had capacity;
- The application is premature because the donor has not lost mental capacity;
- The donor was pressured to make the EPA;
- You suspect fraud;
- The attorney is unsuitable to act on behalf of the donor.
When submitting an EP3PG form to the Office of the Public Guardian, a COP 8 will also need to be submitted to the Court of Protection. A COP 8 form is an application relating to the registration of an EPA.