When a donor is creating a Lasting Power of Attorney (LPA), they have the option to name people to be notified. These are often referred to as ‘people to notify’, ‘people to be told’ or ‘named people’. This week’s article will cover who can be a named person, what their purpose is and what they can do.
What is the purpose of people to be notified?
These are intended as an optional safeguard to donors, these people must be notified by the donor or the attorneys to notify them that the LPA is being registered with the Office of the Public Guardian (OPG). If that person has concerns, they may object to the registration on either a factual objection or a prescribed objection.
In previous LPA forms, it was mandatory to name at least one person to be notified of the registration or alternatively to name two certificate providers. Since the introduction of the most recent LPA forms on 1 July 2015, it is no longer a requirement and is only an optional safeguard.
If the donor is naming a person to be notified, they should inform them of this and let them know what their duties will be.
Who can be a person to be notified?
Any person who is not an attorney or replacement attorney can be named as a person to be notified. The rationale behind this is likely because if there are any concerns on the validity of the document, particularly due to any undue influence, the attorneys themselves would be unlikely to raise that concern. Attorneys however are informed by the OPG at the time of registration.
No more than five people can be named and it is not possible to name a company, firm or any other organisation, it must be a person that is named.
What does a person to be notified need to do?
Any people named need to be informed that the LPA is being registered with the OPG. This is completed by sending each person an LP3 form just before the LPA is sent to the OPG. The LP3 will contain details of the donor, when the LPA was signed, the details of the attorneys and their appointment.
If the named person does not have any concerns, they then do not need to do anything at all. If they have some concerns on the LPA, they would need to raise either a factual objection or a prescribed objection.
A factual objection would be raised by sending form LPA007 along with any relevant evidence to the OPG. This must be sent within three weeks of the objector being notified of the application to register the LPA, otherwise the LPA may be registered. A factual objection can be made on any of the following grounds:
- The donor is bankrupt or interim bankrupt (for a property and financial affairs LPA only).
- An attorney is bankrupt or interim bankrupt (for a property and financial affairs LPA only).
- An attorney is a trust corporation that is wound up or dissolved (for a property and financial affairs LPA only).
- The donor is dead.
- An attorney is dead.
- A marriage or civil partnership between the donor and an attorney is dissolved or annulled (unless the LPA provided otherwise).
- An attorney lacks the capacity to be an attorney.
- An attorney has disclaimed their appointment.
Where the ground is that an attorney can no longer act, the OPG will still register the LPA as long as there is still another attorney able to act (unless they are appointed jointly) or there are replacement attorneys appointed.
The OPG must not register the LPA if it is satisfied that a factual ground is proven. In such a case, the people registering the LPA can apply to the Court of Protection for a ruling on the grounds. If they rule that the grounds are not established, the Court of Protection can then order the OPG to register the LPA.
A prescribed objection would be raised by sending form COP7 to the Court of Protection and form LPA008 to the OPG. The forms must be sent within three weeks of the objector being notified of the application to register the LPA, otherwise the LPA may be registered. A prescribed objection may be made on any of the following grounds:
- The LPA is not legally valid.
- The donor cancelled the LPA when they had mental capacity.
- Fraud or undue influence was used to pressure the donor into making the LPA.
- An attorney is acting, or intends to act, above their authority or against the donor’s best wishes.
Depending on the objection raised, the Court of Protection may direct the OPG to not register the LPA, may revoke the LPA or revoke part of the LPA (for example revoking an attorney’s appointment).
If the objection relates to a specific attorney, the LPA may still be registered where there are other attorneys (unless they are appointed jointly) or if there are replacement attorneys appointed.