The Office of the Public Guardian (OPG), the body that oversees the registration of Lasting Powers of Attorney (LPAs), constantly finds that there is a lack of understanding, mainly on the part of Attorneys, as to what powers they have to act on behalf of the Donor.

The Mental Capacity Act 2005 (MCA 2005) sets out restrictions on what LPAs can be used for.  Where the OPG considers that an LPA contains provisions that are inappropriate or would invalidate the LPA, they are under a duty not to register the LPA until the Court of Protection has determined the matter. The Court then has the power to rescind any offending provisions or to order the OPG not to register the LPA at all.

Examples of inappropriate provisions would include:

  • permission to the Attorney to make gifts that go beyond the rules on being able to give gifts at birthdays and other customary occasions (Section 12 MCA 2005)
  • provisions that are deemed to go beyond what a person can do as an Attorney, for example, they cannot make a Will for the Donor or vote, or
  • provisions that allow an Attorney to consent to a marriage on behalf of the Donor.

The OPG recently applied to the Court of Protection for a ruling on the meaning and effect of words set out in eleven LPAs that the OPG has been asked to register.

The eleven LPAs expressed the Donors’ intentions to allow the Attorneys to use the Donor’s funds to benefit others.  All of the LPAs expressed this as an “instruction” in the LPAs and one also expressed the intention as a “preference”. The people to benefit under the LPAs included children, parents, spouses of the Donors and other people mentioned by name without any reference to their relationship to the Donor. In one instance an appointed Attorney was included.

The OPG asked the Court to determine whether the provisions in the LPAs were:

  • invalid, as purporting to authorise gifts in contravention to Section 12 of the MCA 2005
  • valid, as instructing Attorneys to provide the persons whom the Donor has a legal obligation to maintain; or
  • valid

Where the Donor included an intention to benefit an Attorney under the LPA, the OPG also asked the Court to determine if the provisions were:

  • Invalid, because the additional provisions would normally preclude them from benefiting on the basis that this would give rise to a conflict; or
  • Valid, because any conflict has been authorised by the Donor and the attorney must in any event act in accordance with the Donor’s interests.

Conclusion

LPAs are extremely important documents and should form part of one’s legal and financial affairs.  However, the content of the LPAs and the powers purported to be given to the Attorneys must be legal.  Attorneys must act within the law.

The recent action of the OPG serves only to prove, that due to the inappropriate behaviour by some attorneys, and/or their lack of understanding, there is a need to protect Donors.  It is for this reason that the OPG may not register an LPA if they consider that it includes an invalid intention.  LPAs are therefore becoming more and more technical and are scrutinised by the OPG and the Court of Protection to ensure that there can be no misuse of a Donor’s assets.

Our sister company, Fogwill and Jones (Legal Services) Limited, can help Donors to navigate the technicalities of preparing Lasting Powers of Attorney to ensure that these vital documents are registered with the OPG without delay and without them being declared invalid.  They can also assist appointed Attorneys to understand their legal obligations ensuring that their actions are within the law when they are handling the Donor’s finances.

Source:  Helena Grady (Solicitor) & Colin Fogwill (Director) – Fogwill & Jones (Legal Services) Limited – Monday, 14 October, 2019

Helena Grady at Fogwill & Jones (Legal Services) Limited, is a solicitor and member of the Society of Trust and Estate Practitioners (STEP) with many years’ experience in the preparation and registration of Lasting Powers of Attorney and will be pleased to assist you.  Please contact her to arrange to discuss preparing your LPAs 0114 2588899.  Helena can also help Attorneys who are already appointed and are unsure about their obligations.

Please note that, although Fogwill & Jones (Legal Services) Limited operate from the same premises as Fogwill & Jones Asset Management Limited they are entirely separate businesses.  The only connection is that both are owned by Colin Fogwill. If you are a client of Fogwill & Jones Asset Management Limited you are under no obligation to instruct Fogwill & Jones (Legal Services) Limited and you may choose to instruct alternative legal advisers.