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LPA surge: challenges in registration
- AuthorPaul Rothwell
In 2022, the Office of the Public Guardian (OPG) registered over 770,000 Lasting Powers of Attorney (LPA), and this was an increase of nearly 10% over the number of registrations from 2021.
However, the waiting times between making an application for registration, and registration being granted are causing concern. Prior to the pandemic and lockdowns, the OPG was taking around 10-12 weeks to register a LPA. Unfortunately, this timescale has doubled with the average application to register a LPA continuing to take over 20 weeks for approval. The OPG has confirmed that in 2023, it continues to receive around 85,000 applications a month.
Sadly, this means that on occasions applications for registration of LPAs have been made to the OPG but the donor, who the individual making the LPA, dies before the OPG grant the application. This can cause great distress to the families of the donor. A recent report in Times (Saturday 17 June) gave details of a case where an elderly lady had an accident and she and her daughter applied for her LPA to be registered but, sadly, her mother's health deteriorated quickly and the OPG rejected the application a week before the mother died, because of an issue about verification.
In another matter, a widower had made an application to register a LPA in favour of his daughter. Her daughter commented that she was having to ferry him to various banks, council offices and other places so that he could deal with the administration in respect of his late wife's estate. She was sad that he could not concentrate on grieving. It was a further eight weeks before her father's application for his LPA to be registered was given.
There are two types of LPA. The first type is a Property and Financial LPA and the second type is a Health and Welfare LPA. A Property and Financial LPA gives control over money decisions, including selling the property, dealing with banks, HMRC, or credit cards. A Health and Welfare LPA gives control over decision about care and in many cases medical decisions if the donor loses mental capacity. It important to be aware that a Property and Financial LPA can have legal effect regardless of whether the donor has lost mental capacity, but a Health and Welfare LPA will only work if the donor loses mental capacity. Martin Tolhurst Solicitors offers services to clients in respect of both types of LPA, and registration of the LPA with the OPG once the LPA has been completed.
The OPG reject a number of applications each year because the way that the documents have to be executed can be tricky. There is a certain order to sign the documents and the donor must find an appropriate certificate provider who is not related to the donor but has known them at least two years who countersigns the form or the donor can ask a legal professional to deal with his aspect for them. The role of the certificate provider is part of the protections that have been built in to make sure the donor is entering into the LPA by their own free will.
Signatures on the LPA need to be witnessed. The OPG will consider the application and are checking for the signs of potential fraud or exploitation. Currently, applications have to be sent by hard copy in the post to the OPG and there is no current online application. To ensure that the whole process does not have to be gone through again, it is vital that all of the signatures are correctly made, in the specific order required, witnessed and dated accordingly. Small mistakes will not be overlooked and the application will not be granted by the OPG unless everything is correct. Any alterations/errors on the form need to be crossed out, with all parties putting their initials.
It’s important to remember a LPA only takes effect during the donor’s lifetime and dies with the donor. The donor’s will takes effect on death.
Martin Tolhurst Solicitors can deal with all of the paperwork for you if you would like a LPA. Unfortunately, we are unable to reduce the OPG's backlog of applications or the time that they will take to approve an application! There are plans by the Ministry of Justice to set up an online service which will make it simpler and quicker but at the moment only paper applications can be made.