In this section of the website you will find a series of frequently asked question and answers. We will continue to build upon this list as and when repeating questions or questions of interest occur.

  1. When is the last date to make a Lasting Power of Attorney using the October 2007 prescribed form?
  2. The check list on the front of PFA LPA makes reference to continuation sheet C- do i include additional Part C's signed by the additional attorneys in this and are they counted as total continuation sheets?
  3. Will the new LPA form be rejected if the checklist on page 1 is not completed?
  4. In Part A of the form, where the person making the declaration signs, there is an option on whether or not he has chosen people to be told of the registration of the power. Does the person need to amend this part of the form so they are making a choice?
  5. Can a legal professional be a certificate provider on an LPA that they have drafted at the request of the donor?
  6. What kind of family relationship makes someone ineligible act as a certificate provider?
  7. Can a named person on an LPA be a replacement Attorney on the same LPA?
  8. Can an LPA be amended after execution?
  9. Can an affidavit be produced to correct or supply information where an LPA instrument is defective?
  10. Should an Attorney inform the Public Guardian of a change of address?
  11. How does the donor revoke an LPA?

 

Question 1

When is the last date to make a Lasting Power of Attorney using the October 2007 prescribed form?

Answer

The donor must sign the 2007 prescribed form by 31st March 2011; other parties can sign after this date. The LPA does not need to be registered before this date.

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Question 2

The check list on the front of PFA LPA makes reference to continuation sheet C- do i include additional Part C's signed by the additional attorneys in this and are they counted as total continuation sheets?

Answer

hey are different forms; Part C is for each attorney to sign and form C is only for Trust Corporations. Copies of Part C d not count as continuation sheets, when adding up the total.

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Question 3

Will the new LPA form be rejected if the checklist on page 1 is not completed?

Answer

No, but it provides a check for the person making the power, the person registering the power, the OPG and third parties seeing the power before use to make sure the form is complete.

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Question 4

In Part A of the form, where the person making the declaration signs, there is an option on whether or not he has chosen people to be told of the registration of the power. Does the person need to amend this part of the form so they are making a choice?

Answer

No, it serves a reminder to the person that they need to have made a choice at this point.

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Question 5

Can a legal professional be a certificate provider on an LPA that they have drafted at the request of the donor?

Answer

Yes – providing that the professional is not an Attorney or replacement Attorney on the LPA that they are acting as certificate provider for.

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Question 6

What kind of family relationship makes someone ineligible act as a certificate provider?

Answer

The LPA, EPA and PG Regulations 2007 provide that a “family member” of the donor or the attorney (or of certain others involved with a care home where the donor lives) cannot be a certificate provider.  There is no definition of “family member” in the Regulations.

The OPG is not able to provide a legal definition but, until there is a court ruling to clarify the matter, the OPG considers that the relationships in the following list exclude a person from acting as certificate provider.  An application to register will be rejected in these cases.

  1. Spouse or civil partner
  2. Person who is not a spouse or civil partner but who has been living with the donor/attorney as if they were the spouse or civil partner
  3. Parent
  4. Child
  5. Brother or Sister
  6. Grandparent
  7. Grandchild
  8. Niece or Nephew
  9. Uncle or Aunt
  10. Brother or Sister of the half blood (usually called a half-brother or half-sister)
  11. Step-child
  12. Step-parent
  13. Niece or Nephew of the half blood (this means the child of a half-brother or half-sister)
  14. Uncle or Aunt of the half blood (this means the parent’s half-brother or half-sister)
  15. Widow, widower or surviving civil partner of a child of the Donor or of the Attorney
  16. Relationship by marriage, e.g. son-in-law, daughter-in-law, mother-in-law etc, ie the equivalent relationships by marriage of the relevant listed relationships.

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Question 7

Can a named person on an LPA be a replacement Attorney on the same LPA?

Answer

No they cannot.

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Question 8

Can an LPA be amended after execution?

Answer

No - An LPA is a deed created in a prescribed form and the Mental Capacity Act 2005 provides no scope for an LPA to be amended after execution. However if amendments are necessary due to defects in parts B or C then the same people who completed the original form can complete new parts B and C.

If there are defects in part A of the LPA form then a complete new LPA form will be required, providing the Donor is still capable of making one.

The OPG is not able to rectify an incomplete form.

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Question 9

Can an affidavit be produced to correct or supply information where an LPA instrument is defective?

Answer

No - An LPA is a deed created in a prescribed form and the Mental Capacity Act 2005 provides no scope for an LPA to be registered on production of an affidavit. However if amendments are necessary due to defects in parts B or C then the same people who completed the original form can complete new parts B and C.

If there are defects in part A of the LPA form then a complete new LPA form will be required, providing the Donor is still capable of making one.

The OPG is not able to rectify an incomplete form.


Question 10

Should an Attorney inform the Public Guardian of a change of address?

Answer

Yes, whilst not specifically required under the legislation, it is essential  for the Public Guardian that he has updates. One of his roles is to maintain the register of Enduring and Lasting Powers of Attorney. If an attorney does not keep the OPG informed of changes and subsequently there was a concern, the records would not reflect how to contact the attorney and investigate. It safeguards the donor by keeping the OPG up to date.

 


Question 11

How does the donor revoke an LPA?

Answer

The donor may revoke an LPA either before or after registration, provided the donor has capacity to revoke it. The following wording may be used, adapted as appropriate, where the LPA has been registered. If the LPA has not been registered, the words "instrument intended to create a Lasting Power of Attorney" should be used instead of "Lasting Power of Attorney", because in law the instrument does not become an LPA until it is registered.

 

THIS DEED OF REVOCATION is made by [donor's name] of [donor's address]

1. I granted a Lasting Power of Attorney for Property and Financial Affairs/Health and Welfare [delete as appropriate] on [date donor signed the LPA] appointing [name of attorney 1] of [address of attorney 1] and [name of attorney 2] of [address of attorney 2] to act as my attorney(s)

2. I revoke the Lasting Power of Attorney and the authority granted by it

 

Signed and delivered as a deed                                           [donor's signature]

Date Signed                                                                          [date]

Witnessed by                                                                        [signature of Witness]

Full name of Witness                                                            [name of Witness]

Address of Witness                                                              [address of Witness]

 

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