When you make a lasting power of attorney you can opt to tell people who are or will be otherwise not involved that you have made it, and give them a chance to raise objections to your wishes before it is registered.
We recommend that you do tell someone else about your LPA, as doing so can reduce the probability that your wishes are challenged later.
Anyone can challenge the action of your attorneys. The possibility of this helps keep them accountable to the law.
The grounds on which a challenge is made is usually either that the donor, the person making the LPA, did not have mental capacity at the time of registration, or that he or she was forced into choosing an attorney or giving a particular instruction.
The real reason can be much simpler - someone simply might not like your wishes because it doesn’t give them control over your finances or care.
The objectors may want you to nominate them as attorneys, or nominate someone else in place of an attorney, or may object to one of your instructions.
Challenging an attorney’s decision requires the argument to be heard by a judge in the Court of Protection. It can be expensive to hire lawyers, but the real cost is one of time. A case in the Court of Protection can take months to be heard and adjudicated on.
While an argument is taking place in court, your attorneys may put off other decisions for you.
Recognising this, the Office of the Public Guardian (OPG) have made built in some safeguards to help ensure that LPAs cannot be made fraudulently.
The first safeguard is the requirement to have a certificate provider – someone who knows the donor well, or is a professional, and who can verify the identity of the person making the document and his or her mental capacity (understanding) of what he or she is doing.
The second safeguard is that the document has to be registered with the OPG. This lessens the risks that an LPA might be tampered with, or that one might be made in the donor’s name by someone else.
The third safeguard is the option to notify people that the LPA has been made.
You don’t have to choose anyone to notify. If you do, that person has the right to see the LPA before it is registered, and to object to it. If no objections are made before registration, it would be difficult for them to be made afterwards. Including people to notify is therefore a way of reducing the chance that the person might object later.
Notifying someone is also a good way to make that person feel involved in the process of making your lasting power of attorney, without giving him or her any power.
For example, if you have two children and nominate your husband and your eldest son to be attorneys, but not your youngest son, then nominating your youngest son as a person to notify involves him from the outset and could encourage him to offer support when needed to the attorneys.
It can also reduce the risk of your LPA not being found when needed. A person who has been notified will know the existence of the document, and possibly where to find to find it. Of course, all the attorneys and replacements should also know.
You can nominate up to five people to notify. None can have any other role in your LPA (e.g. they cannot be attorneys or replacement attorneys). In Section 6 of the form, there is space for the names and addresses of four people, but a fifth can be added on a supplementary sheet.
We recommend telling the people that will be notified that you are making an LPA and that you have nominated them. It will be helpful for them to know that they will receive a notice from the Office of the Public Guardian when your LPA has been sent to be registered. They do not have to do anything when they receive the notice, unless they have any concerns. The document the OPG sends to them will explain what they should do.
Making an LPA
Net Lawman has an online lasting of power of attorney service that it runs in conjunction with Unforgettable.org, a leading dementia products retailer. The basic service – making either type of LPA – is free to use. If you would like your forms to be checked by a professional will writer to give you peace of mind that they will be registered by the OPG, there is a small fee to pay.