Applications to register Lasting Powers of Attorney (LPAs) with the Office of the Public Guardian (the OPG) have greatly increased since the pandemic. This has unfortunately resulted in a significant increase in the time required for the OPG to process LPA applications, with the estimated processing time currently standing at 20 weeks compared to the OPG’s target of 40 days.
With the significant backlog at the OPG unlikely to be resolved in the short term, the most effective method to avoid unnecessary delays is to ensure that LPAs have been correctly completed, executed, and registered with the OPG as soon as possible. LPAs must include the full legal names of all individuals signing, including their middle names, and signed by the donor, attorneys and certificate provider in a specific order.
If individuals make a mistake of signing in the wrong order or in the wrong place, this can result in the OPG requesting these sections to be amended causing further delays. However, as it may now take the OPG a significant amount of time to request any amendments, or potentially the redrafting of the LPAs, it may give rise to the difficult position where the donor has lost capacity following the initial signing of the LPAs.
It would also be advisable that the LPAs are registered immediately following execution. This ensures that the attorneys can act from the date of registration with regards to the Property and Financial Affairs and can act immediately upon the donor losing capacity in relation to their Health and Welfare. To ensure that the LPAs are only used with the donor’s consent, it would also be possible to store the LPAs with a solicitor with instructions to give them to the attorneys only once the donor requires assistance.
Given the extended timeline for the completion of the registration process, individuals may also wish to consider putting in place a general Power of Attorney (POA) to allow them to take actions during the registration period. A POA will take effect immediately upon execution and will allow an attorney to manage the donor’s financial affairs.
The POA can only be used whilst the donor has the requisite mental capacity to manage their affairs, however, it may assist in the general administration of the donor’s affairs whilst awaiting the registration of the LPAs.
Additional practical steps to consider would include appointing a family member as a joint account holder or signatory of the donor’s bank accounts, as this would allow the temporary management of financial affairs whilst an application is outstanding. It may also be advisable to consider liaising with a financial advisor who may suggest putting in place an element of financial security (e.g. a care annuity), which would better provide for the donor’s needs after they lose capacity.
Where the donor loses capacity and it is therefore no longer possible to register LPAs, it may be appropriate to make an application to the Court of Protection (COP) to appoint a deputy. A court appointed deputy will be granted specific powers within a deputyship order.
These powers could be as narrow as authorising a single decision or be as wide as providing equivalent authority to LPAs. An application to the COP may have unintended consequences, as the final decision as to whom shall be the deputy is up to the COP, not the donor and the COP will normally only appoint a deputy to manage an individual’s property and financial affairs, with personal welfare deputies only appointed in the most difficult circumstances.
Unfortunately, much like applying to register LPAs with the OPG, applications for the appointment of a court deputy can take several months and unlike with an LPA, a court deputy must comply statutory principles when exercising their authority and submit an annual deputy report to comply with reporting obligations. In addition, whilst it may be within a lay person’s abilities to register an LPA, an application to the COP will likely necessitate instructing legal representation.
As a response to the unprecedented delays in registering LPAs, a private members bill has been introduced to modernise the process of registering LPAs. The bill, which is currently on its second reading in the House of Lords, endeavours to reduce delays by enabling the OPG to introduce online LPA applications.
As previously explained, the vast majority of avoidable delays with registration are caused by individuals failing to complete and execute an LPA in the correct manner. Online applications would also remove the delay and risk caused by the postal system and could potentially result in much faster processing times at the OPG. That said, it is important to ensure that the streamlined process does not jeopardise the safeguarding protections for donors.