Registering a Power of Attorney
Enduring Powers of Attorney
Although new Enduring Powers of Attorney (EPAs) cannot be created as they have been replaced by the Lasting Power of Attorney (LPA) system, EPAs created before 1st October 2007 can still be used.
Unlike Lasting Powers of Attorney, an EPA does not have to be registered before being used, if the person who made the Power of Attorney (the donor) still has full mental capacity. Once the donor is no longer able to manage their financial affairs properly, the attorneys named in the EPA have a duty to apply to the Office of the Public Guardian (OPG) to register the document so they can manage the donor's finances. Registration must be initiated at this time even when the attorneys have already been assisting the donor under an unregistered EPA. The registration process requires a formal Application Form, and Notices have to be served on certain people.
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Lasting Powers of Attorney (LPA)
In contrast to an EPA, an LPA cannot be used until it has been registered with the OPG. However registration dose not mean the attorneys are to begin their duties at once, it is merely a process to confirm the validity of the document and people with concerns, for instance about the choice of attorney, have the opportunity to raise them.
There is no obligation to register an LPA straight after its signature. However the OPG suggests immediate registration is sensible because if registration is delayed until the donor has lost the capacity to manage their affairs, and hence the chosen attorneys wish to act, then serious problems could arise if the document turns out to contain errors. By that time the donor's loss of capacity would mean it is too late to make a new LPA and it would be necessary for someone to apply to the Court of Protection to be appointed as a Deputy instead.
Registration also means that details of the LPA are on a central system, so official copies can be produced if the original were to go astray. Provided the donor still has capacity, a registered LPA can still be cancelled if circumstances change.
The Registration process currently takes 8-10 weeks during which time the attorneys have no authority to act, so it is better if the LPA has already been registered and is therefore available for immediate use when needed. Remember that even after the attorneys have a registered LPA and wish to use it, there can still be a delay of some weeks for them to have full access to the donor's finances due to the internal procedures of the banks and other financial institutions.
We always recommend immediate registration for Lasting Powers of Attorney (Health and Welfare) because decisions about someone's health can arise very suddenly and cannot usually wait for the registration process to be completed.
An emergency decision process is available but at considerable cost and still some delay. A Health and Welfare attorney cannot make decisions unless the donor has lost the capacity to make their own decisions.
We are happy to advise and assist both donors and attorneys with any of these processes.
Contact us now for a consultation.