The Powers of Attorney Bill received its second reading last month and now moves on to the Committee stage. The Bill is to enable the efforts of the Ministry of Justice (MoJ) and the Office of the Public Guardian (OPG), under the banner of ‘OPG 2025’, to come to fruition. OPG 2025 aims at making Lasting Powers of Attorney (LPAs) as common as driving licences, with smoother processes for creation and raising objections.  

Headline changes to the LPA creation process include allowing parties to electronically sign the LPA, removing the ability for attorneys to register an LPA, introducing identification verification and, crucially, providing for a simpler route for objections. However, whilst the Bill is still some way from receiving Royal Assent, and with much of the detail to be left to Regulations to come later, now is a good opportunity to review the current avenues for objecting to LPAs.

What is an LPA?

An LPA is legal document that allows one or more attorney(s) to act on behalf of the donor. Unlike the Enduring Power of Attorney, which was replaced by the LPA from 1 October 2007, LPAs must be registered with the OPG for attorneys to derive power. A donor can create a Health and Welfare LPA and/or a Property and Financial LPA. With the former, attorneys can only act if the donor loses capacity. With the latter, attorneys can act immediately following registration, though this can be delayed.

LPAs are created in accordance with Sch 1 MCA 2005. Only an adult with capacity can create an LPA. Capacity of the donor is to be presumed unless proven otherwise, with the burden of disproving capacity lying with the person claiming incapacity on the balance of probabilities. There are various safeguards, of varying strengths, built into the LPA creation process. There is also the ability to object to registration, however, the avenue to take depends upon who is objecting and why.

Objections

There are various ways to object to an LPA. The correct avenue is determined by the type of objector and type of objection.

Donor

The donor can object to registration of the LPA at any time and for any reason by giving notice to the OPG. The OPG cannot then register the LPA unless directed to by the Court of Protection (CoP). Additionally, the donor can apply to revoke the LPA at any time once registered. The donor would not be able to object at all if they no longer had mental capacity.

People notified

People, including relatives of the donor, will not ordinarily be notified of the application to register an LPA unless they have been noted down on the LPA application form. If however, the donor decides to have people notified, and they in turn wish to raise objections, they must do so on factual grounds or prescribed grounds. 

Factual grounds

Objections on factual grounds are to be submitted to the OPG within 3 weeks of receiving notification of the LPA application. The factual grounds are set out in the notice of intended registration of the LPA which must be sent to the people to be notified. Such grounds include death of the donor or attorney, divorce of previously married attorney and donor and the attorney’s lack of capacity amongst other grounds. The objector should also submit evidence. Once received, the OPG will stop the registration. If the applicant disputes the objection, they will need to apply to the CoP for a direction to register the LPA, which will only be made if the court is convinced that the objection is groundless.

Prescribed grounds

Objections on factual grounds are to be submitted to the CoP in accordance with the COPR 2017 Rule 9.7. The OPG must also be notified of the objection. The prescribed grounds are also listed in the notice of registration and include non-compliance with the creation requirements, such as the donor’s lack of capacity, amongst other grounds. Again, the objector should submit evidence. The OPG will cease the registration and only continue if directed to by the CoP.

Objections to registration by others

Any other person wishing to raise objections must do so by application to the CoP in accordance with the COPR 2017 Part 9.

Once registered

Attorneys are in a fiduciary position and must act in accordance with the donor’s best interest at all times. If it is suspected that an attorney has acted against this principle, perhaps benefitting themselves through the appointment, concerns should be raised with the OPG.

The OPG will respond accordingly to reports. It may undertake an investigation into the attorney’s actions, remove the attorney from the LPA or even refer the matter to the CoP which may take appropriate legal action against the attorney.

Summary

Thus, at present, and until such a time as the Powers of Attorney Bill is enacted into law, the person wishing to object to or challenge an LPA is faced the a maze of options.

If you have concerns over an LPA, though feel unsure how to raise them, please contact our Litigation & Disputes team who will be happy to advise on the correct path to take. Perhaps a sibling is attorney for one of your parents and you feel they are unsuitable for the role. Perhaps someone you know made an LPA and you are dubious about their decision-making capacity. Whatever the concern, seeking advice early on is essential to protecting the vulnerable person.

Written by Oliver Clark – Trainee Solicitor