My client is an attorney under a Financial Affairs LPA registered in 2014 but another family member (who my client fears is acting contrary to the interests of the donor) has claimed that she holds an LPA as well.
The family are sketchy on detail so it is possible that this is a ruse but also possible that the other family member has persuaded the donor to grant her an LPA or an EPA pre-2007 (both presumably unregistered) which was simply forgotten when she made the one in favour of my client. I doubt the relation is just holding a health & welfare LPA.
It appears that only express revocation is effective and so, in theory, there can be two valid LPA/EPAs appointing different attorneys and operating independently of each other.
The donor has only recently lost capacity but I assume the OPG would have notified all parties if the relation had (or in future) sought to register another EPA/LPA.
Is anybody aware of any OPG practice around this? Would they perhaps refer a second registration application to the Court for a ruling on which should be in force or simply register both? Having two would certainly make life difficult - particularly if both tried to file them with banks.
I act for a donor who has recently lost capacity. Before he lost capacity he instructed me to prepare and register an LPA for X. Subsequently it came to light that another LPA appointing Y as his attorney was registered at the OPG. The OPG registered both and both are valid. There was no cross referencing and the OPG were not aware that the donor had 2 LPAs until we pointed it out.
There were concerns as to Y’s conduct and whether he is appropriate to be an attorney and whether the donor had capacity at the time of preparing the LPA for Y. We reported the LPA for Y to the OPG along with our concerns who in turn involved their safeguarding team. The safeguarding team then made an application to the Court of Protection to remove Y.
We were told that we also had the option to apply to remove Y as an attorney. We did not pursue this option because this would have meant that the safeguarding team would not have continued their investigation. We wanted Y’s conduct investigated and the matter is currently with the Court of Protection.
The new registration forms for Lasting Powers of Attorney do not ask if the donor has made/registered any previous Lasting Powers of Attorney, unlike the earlier application forms, which had a specific section where this information was to be added. This means there is currently no opportunity on the form itself for alerting the OPG to difficulties arising from competing Lasting Powers of Attorney (although there is of course the covering letter…).
Do the OPG check for previous Lasting/Enduring Powers of Attorney of their own volition? If there is a clash, what is their practice?
Thackray Williams LLP
I currently am in a situation whereby there is a registered LPA PF and an EPA unregistered that family members are using. The LPA PF has different attorneys to the LPA and I have looked at the Lasting Powers of Attorney book by Craig Ward, which seems to suggest that a Registered LPA revokes an unregistered EPA and quotes a senior Judge’s decision in Re Boar 2010. Can anyone give a definitive answer on this?
At the risk of reopening an old thread, does anyone have any update on current OPG practice? I have a client who appointed X under an LPA PFA a couple of years ago. They now want to appoint Y but are still perfectly happy with X and don’t want to make a joint and several LPA revoking the power in favour of X in case someone needs to act for them while the registration process is under way. Can they just appoint Y under a second LPA and intentionally make no cross-reference?
Plantagenet Partners LLP
Why not make a joint and several LPA in favour of X and Y revoking the earlier LPA on its successful registration with the OPG? That way X could act if necessary whilst the new LPA is being registered. Also, on registration of the new LPA, the donor, attorneys, and third parties would only have one LPA to deal with, which would also avoid any confusion as to validity.
There is no problem with a client registering two or more concurrent LPAs.
Alternatively, a new LPA can be made appointing both, with the earlier one being revoked on completion of registration. The latter course may be preferable because I think that a bank being asked
to register a second LPA by the same customer might assume that the earlier one had been revoked; extremely inconvenient if (wrongly) they decided to bounce cheques the first attorney had issued. In a recent case where I have just registered a second LPA
it expressly said under ‘instructions’ that it is to be without prejudice to the earlier power.