Why won’t the OPG register my LPA?
Thousands of Lasting Powers have been successfully registered at the Office of the Public Guardian (OPG) since the Mental Capacity Act 2005 came into effect. However, there are many that have not made it.
Amended forms, introduced in 2009, have helped reduce the rejection rate but problems still arise. Many fear that with the promotion of online forms rejection rates will increase again. To help you avoid some of the hurdles here’s a run through of the common problems and misconceptions:
Surely the OPG can just fix minor errors? The OPG maintains the register of Lasting Powers. They have a duty to register a valid Power and not to register an invalid one. They do not have power to make decisions about defective forms and cannot amend forms that are presented to them.
The Regulations provide that each part of the Power has to be completed in turn. If information is missing it cannot be inserted at a later date – because the section of the form was has to be completed in sequence.
The Regulations do not allow for insertion of information once the power has been signed. Even if a sworn statement is provided with the missing information it will not be accepted. The only solution is to start again from scratch. This may not be possible if the person creating the Power is losing their capacity.
Use the prescribed form! If you do not use the right form the OPG will reject it and you will have to start again.
Execute carefully! If a Power has not been correctly signed by the Donor, Attorneys and/or Certificate Provider it will be defective. Again, you will have to start from scratch. So take the time to check, double check and triple check.
Restrictions: Using invalid restrictions and conditions when appointing Attorneys is a common problem with Lasting Powers.
Often they are incompatible with the appointment of Attorneys. For example, appointing Attorneys jointly means they have to act together all of the time. If one jointly appointed Attorney dies then the appointment of all Attorneys fails. If you impose a restriction that a majority of two of three Attorneys can make decisions it will fail because it conflicts with the appointment which is joint – all three must act.
Authority to make gifts: Attorneys can make gifts up to certain limits. You might want to give your Attorneys authority to make larger gifts but this is not permitted within a Lasting Power. Instead an application to the Court of Protection for approval will be needed.
Certificate Providers cannot be anyone: A Certificate Provider cannot be a family member of the Donor or the Attorney. An in-law is also not eligible.
A Certificate Provider must have either known the Donor of the Power for at least two years or have the requisite level of professional skills to take on the role. Any old lawyer won’t do – you need someone with relevant expertise and experience (like us!).
Named Persons: Including an Attorney as a Named Person, to be notified when the Power is registered, leads to rejection by the OPG.
Replacement Attorneys: You are only able to appoint Replacement Attorneys for your first choice Attorneys.
Replacements cannot replace replacements. You need to be very clear when you want your replacements to act. If you say nothing to the contrary a Replacement Attorney will step in to act when your first choice Attorney is unable to act. But they will only have authority to act once the Power has been re-registered.
If a Replacement Attorney is to act in any other circumstance you must detail this in the Power.
Severance: In some circumstances the OPG can sever the terms of appointment of Attorneys.
Or they may recommend an application be made to the Court of Protection. The Court of Protection can then issue directions and/or an Order as appropriate.
Health & Welfare LPA – life sustaining treatment: When you complete a Health & Welfare Lasting Power of Attorney, it is vitally important that you make a decision on whether you want your Attorneys to have the power to give or refuse consent for life sustaining treatment.
If you do not indicate an option your Attorneys will not to have this power.
A rejected Power can mean that nobody is appointed to help a Donor with financial or health and welfare matters at a critical time. It is worth stating the obvious – it’s important to get it right!
We advocate registering Powers as soon as they have been completed. You only have an effective Lasting Power when it has been successfully registered with the OPG. The alternative is a Deputyship Application to the Court of Protection which is both a costly and lengthy process best avoided.
Contact us for advice, support and guidance – it’s what we do:
T: 01227 700 702
Published by Simon Crooks 15 June 2015