The Office of the Public Guardian (OPG) is the government agency responsible for registering and monitoring lasting Powers of Attorney (POA).
In its 2020/21 annual report, it said it received 691,746 applications that year to register a Lasting Power of Attorney or Enduring Power of Attorney and it now had over 5.3 million powers of attorney in total on its register.
That’s a huge number, yet some have suggested that even more people ought to be setting one up. To put that into context, research from Canada Life in 2020 found that 20 million UK adults, by comparison, had a will.
If you thinking of putting an POA in place, there are a few traps to watch out for.
Don’t leave it too late
The first pitfall to be aware of is that an individual cannot set up a POA if they have lost mental capacity.
This means a person who lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken.
Research has found people surveyed thought that their family or next of kin could make decisions on their behalf if they lost capacity.
That’s incorrect, and in the absence of a POA, no one else can lawfully act on behalf of the individual.
Later Life-Are attitudes changing?
More information on setting up a POA
Use the right type of POA
There are different types of POA, and they have different uses.
The Lasting Power of Attorney is the most formal type, replacing the Enduring Power of Attorney in 2007.
There is a standard form for it, and it must be registered with the OPG at the outset. It has two versions – one for health and welfare, one for financial affairs.
Ordinary Power of Attorney.
If you are looking for something temporary, then you could consider an Ordinary power of Attorney
It needs to be executed as a deed, which means it must be in writing and be witnessed, but otherwise it’s straightforward to draw up and can be as simple as a one-page document. It doesn’t need to be registered with the OPG either.
In terms of drawbacks, an Ordinary Power of Attorney automatically ceases if the client loses capacity. Therefore, for long-term use an LPA may work better as this would remain in force.
Sign up for the ‘Use an LPA’ service
The next step is sending it out to third parties.
In July 2020, the OPG set up a new online service called ‘Use an LPA’, which third parties such as banks and investment providers can use to verify an LPA rather than relying on seeing a paper version.
Clients registering an LPA on or after 17 July 2020 will receive a reference number and an activation key, which they can use to create an online account.
Once they’ve done that, they can add the LPA to the account and a generate a secure temporary access code, which they can give to a third party. The third party can then view certain details of the LPA online.
However, the wheels of change turn slowly, and we’re still in the early adoption stage. While the OPG reports ‘growing interest’ among organisations, it might be a while before it’s used widely.
Make sure copies are certified correctly
If you are sending out a paper version of the POA, providers will always be comfortable seeing the original.
Given how valuable a POA document is, however, I suspect that most people will be cautious about sending it by post. Instead, they might look at sending a photocopy.
In terms of how it must be certified, the guidance on the Gov.uk website provides standard wording, and the person certifying it must sign and date every page.
