The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007

Made: 16th April 2007

Laid before Parliament: 17th April 2007

Coming into force: 1st October 2007

The Lord Chancellor makes the following Regulations in exercise of the powers conferred by sections 13(6)(a), 58(3) and 64(1) of, and Schedules 1 and 4 to, the Mental Capacity Act 2005 .

PART 1 — PRELIMINARY

Citation and commencement

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• (1) These Regulations may be cited as the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007.

• (2) These Regulations shall come into force on 1 October 2007.

Interpretation

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• (1) In these Regulations—

• “the 2017 Act” means the Guardianship (Missing Persons) Act 2017;

• “the Act” means the Mental Capacity Act 2005;

• “court” means the Court of Protection or in relation to proceedings under the 2017 Act the court for the time being designated by the Lord Chancellor under section 23 of the 2017 Act;

• “guardian” has the meaning given in the 2017 Act;

• “guardianship order” has the meaning given in the 2017 Act;

• “LPA certificate”, in relation to an instrument made with a view to creating a lasting power of attorney, means the certificate which is required to be included in the instrument by virtue of paragraph 2(1)(e) of Schedule 1 to the Act;

• “person to notify”, in relation to an instrument made with a view to creating a lasting power of attorney, means a person who, under Schedule 1, paragraph 2(1)(c)(i) of the Act, is named in the instrument as being a person to be notified of any application for the registration of the instrument;

• “prescribed information”, in relation to any instrument intended to create a lasting power of attorney, means the information contained in the form used for the instrument which appears under the heading “Section 8 – Your legal rights and responsibilities”.

Minimal differences from forms prescribed in these Regulations

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• (1) In these Regulations, any reference to a form—

• (a) in the case of a form set out in Schedules 1 to 7 to these Regulations, is to be regarded as including a Welsh version of that form; and

• (b) in the case of a form set out in Schedules 2 to 7 to these Regulations, is to be regarded as also including—

• (i) a form to the same effect but which differs in an immaterial respect in form or mode of expression;

• (ii) a form to the same effect but with such variations as the circumstances may require or the court or the Public Guardian may approve; or

• (iii) a Welsh version of a form within (i) or (ii).

Computation of time

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• (1) This regulation shows how to calculate any period of time which is specified in these Regulations.

• (2) A period of time expressed as a number of days must be computed as clear days.

• (3) Where the specified period is 7 days or less, and would include a day which is not a business day, that day does not count.

• (4) When the specified period for doing any act at the office of the Public Guardian ends on a day on which the office is closed, that act will be done in time if done on the next day on which the office is open.

• (5) In this regulation—

• “business day” means a day other than—a Saturday, Sunday, Christmas Day or Good Friday; ora bank holiday under the Banking and Financial Dealings Act 1971 , in England and Wales; and

• “clear days” means that in computing the number of days—the day on which the period begins, andif the end of the period is defined by reference to an event, the day on which that event occurs,are not included.

PART 2 — LASTING POWERS OF ATTORNEY

Instruments intended to create a lasting power of attorney

Forms for lasting powers of attorney

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The forms set out in Parts 1 and 2 of Schedule 1 to these Regulations are the forms which, in the circumstances to which they apply, are to be used for instruments intended to create a lasting power of attorney.

Maximum number of named persons

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The maximum number of people to notify that the donor of a lasting power of attorney may specify in the instrument intended to create the power is 5.

Requirement for two LPA certificates where instrument has no named persons

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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Persons who may provide an LPA certificate

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• (1) Subject to paragraph (3), the following persons may give an LPA certificate—

• (a) a person chosen by the donor as being someone who has known him personally for the period of at least two years which ends immediately before the date on which that person signs the LPA certificate;

• (b) a person chosen by the donor who, on account of his professional skills and expertise, reasonably considers that he is competent to make the judgments necessary to certify the matters set out in paragraph (2)(1)(e) of Schedule 1 to the Act.

• (2) The following are examples of persons within paragraph (1)(b)—

• (a) a registered health care professional;

• (b) a barrister, solicitor or advocate called or admitted in any part of the United Kingdom;

• (c) a registered social worker; or

• (d) an independent mental capacity advocate.

• (3) A person is disqualified from giving an LPA certificate in respect of any instrument intended to create a lasting power of attorney if that person is—

• (a) a family member of the donor;

• (b) a donee of that power;

• (c) a donee of—

• (i) any other lasting power of attorney, or

• (ii) an enduring power of attorney,

which has been executed by the donor (whether or not it has been revoked);

• (d) a family member of a donee within sub-paragraph (b);

• (e) a director or employee of a trust corporation acting as a donee within sub-paragraph (b);

• (f) a business partner or employee of—

• (i) the donor, or

• (ii) a donee within sub-paragraph (b);

• (g) an owner, director, manager or employee of any care home in which the donor is living when the instrument is executed; or

• (h) a family member of a person within sub-paragraph (g).

• (4) In this regulation—

• “care home” means—a care home in England within the meaning given by section 3 of the Care Standards Act 2000, anda place in Wales at which a care home service, within the meaning of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016, is provided wholly or mainly to persons aged 18 or over;

• “registered health care professional” means a person who is a member of a profession regulated by a body mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002 ; and

• “registered social worker” means a person registered as a social worker in a register maintained by— Social Work England; Social Care Wales;the Scottish Social Services Council; orthe Northern Ireland Social Care Council.

Execution of instrument

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• (1) An instrument intended to create a lasting power of attorney must be executed in accordance with this regulation.

• (2) The donor must read (or have read to him) all the prescribed information.

• (3) As soon as reasonably practicable after the steps required by paragraph (2) have been taken, the donor must—

• (a) complete the provisions of Sections 1 to 7 of the instrument that apply to him (or direct another person to do so); and

• (b) subject to paragraph (7), in the presence of a witness—

• (i) sign Section 9 of the instrument if the instrument is intended to create a lasting power of attorney for property and financial affairs (Form LP1F); or

• (ii) sign Sections 5 and 9 of the instrument if the instrument is intended to create a lasting power of attorney for health and welfare (Form LP1H);

• (4) As soon as reasonably practicable after the steps required by paragraph (3) have been taken—

• (a) the person giving an LPA certificate, ...

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

must complete the LPA certificate at Section 10 of the instrument and sign it.

• (5) As soon as reasonably practicable after the steps required by paragraph (4) have been taken—

• (a) the donee, or

• (b) if more than one, each of the donees,

must read (or have read to him) all the prescribed information.

• (6) As soon as reasonably practicable after the steps required by paragraph (5) have been taken, the donee or, if more than one, each of them—

• (a) must complete the provisions of Section 11 of the instrument that apply to him (or direct another person to do so); and

• (b) subject to paragraph (7), must sign Section 11 of the instrument in the presence of a witness.

• (7) If the instrument is to be signed by any person at the direction of the donor, or at the direction of any donee, the signature must be done in the presence of two witnesses.

• (8) For the purposes of this regulation—

• (a) the donor may not witness any signature required for the power;

• (b) a donee may not witness any signature required for the power apart from that of another donee.

• (9) A person witnessing a signature must—

• (a) sign the instrument; and

• (b) give his full name and address.

• (10) Any reference in this regulation to a person signing an instrument (however expressed) includes his signing it by means of a mark made on the instrument at the appropriate place.

Registering the instrument

Notice to be given by a person about to apply for registration of lasting power of attorney

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Schedule 2 to these Regulations sets out the form of notice (Form LPA3) which must be given by a donor or donee who is about to make an application for the registration of an instrument intended to create a lasting power of attorney.

Application for registration

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• (1) An application to the Public Guardian for the registration of an instrument intended to create a lasting power of attorney that is in Form LP1F or LP1H must be made by completion of Sections 12 and 13, the relevant parts of Section 14 and Section 15 of that Form.

• (2) An application to the Public Guardian for the registration of an instrument intended to create a lasting power of attorney that is in a pre-July 2015 form must be made by using Form LP2 set out in Schedule 3 to these Regulations.

• (3) An application to the Public Guardian for the registration of an instrument intended to create a lasting power of attorney where the application is a repeat application (“a reduced fee repeat application”) may only be made if—

• (a) the initial application for the registration of a lasting power of attorney is made on or after 1st October 2011;

• (b) the initial application was returned to the applicant as invalid;

• (c) the reduced fee repeat application is submitted for registration within three months of the date on which the initial application was returned to the applicant as invalid; and

• (d) the reduced fee for such applications applies.

• (4) Where the initial application for the registration of the lasting power of attorney was made in accordance with paragraph (1) using Form LP1F or LP1H, a reduced fee repeat application must also be made by the completion of Form LP1F or LP1H as appropriate, including completion of the repeat application option in Section 14 of that Form.

• (5) Where the initial application for the registration of the lasting power of attorney was made in accordance with paragraph (2) using a pre-July 2015 form, a reduced fee repeat application must be made by the completion of Form LP1F or LP1H as appropriate, including completion of the repeat application option in Section 14 of that Form.

• (6) Where the instrument to be registered which is sent with the application is neither—

• (a) the original instrument intended to create the power; nor

• (b) a certified copy of it,

the Public Guardian must not register the instrument unless the court directs the Public Guardian to do so.

• (7) In this regulation—

• (a) “pre-July 2015 form” means a valid instrument intended to create a lasting power of attorney that is not in Form LP1F or LP1H but that complies with these Regulations as they were in force immediately before 1st July 2015; and

• (b) “certified copy” means a photographic or other facsimile copy which is certified as an accurate copy by—

• (i) the donor; or

• (ii) a solicitor or notary.

Period to elapse before registration in cases not involving objection or defect

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The period at the end of which the Public Guardian must register an instrument in accordance with paragraph 5 of Schedule 1 to the Act is the period of 4 weeks beginning with—

• (a) the date on which the Public Guardian gave the notice or notices under paragraph 7 or 8 of Schedule 1 to the Act of receipt of an application for registration; or

• (b) if notices were given on more than one date, the latest of those dates.

Notice of receipt of application for registration

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• (1) Part 1 of Schedule 4 to these Regulations sets out the form of notice (“LPA 003A”) which the Public Guardian must give to the donee (or donees) when the Public Guardian receives an application for the registration of a lasting power of attorney.

• (2) Part 2 of Schedule 4 sets out the form of notice (“LPA 003B”) which the Public Guardian must give to the donor when the Public Guardian receives such an application.

• (3) Where it appears to the Public Guardian that there is good reason to do so, the Public Guardian must also provide (or arrange for the provision of) an explanation to the donor of—

• (a) the notice referred to in paragraph (2) and what the effect of it is; and

• (b) why it is being brought to his attention.

• (4) Any information provided under paragraph (3) must be provided—

• (a) to the donor personally; and

• (b) in a way that is appropriate to the donor's circumstances (for example using simple language, visual aids or other appropriate means).

Objection to registration: notice to Public Guardian to be given by the donee of the power or a person to notify

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• (1) This regulation deals with any objection to the registration of an instrument as a lasting power of attorney which is to be made to the Public Guardian by the donee of the power or a person to notify.

• (2) Where the donee of the power or a person to notify—

• (a) is entitled to receive notice under paragraph 6, 7 or 8 of Schedule 1 to the Act of an application for the registration of the instrument, and

• (b) wishes to object to registration on a ground set out in paragraph 13(1) of Schedule 1 to the Act,

he must do so before the end of the period of 3 weeks beginning with the date on which the notice is given.

• (3) A notice of objection must be given in writing, setting out—

• (a) the name and address of the objector;

• (b) ...the name and address of the donor of the power;

• (c) if known, the name and address of the donee (or donees); and

• (d) the ground for making the objection.

• (4) The Public Guardian must notify the objector as to whether he is satisfied that the ground of the objection is established.

• (5) At any time after receiving the notice of objection and before giving the notice required by paragraph (4), the Public Guardian may require the objector to provide such further information, or produce such documents, as the Public Guardian reasonably considers necessary to enable him to determine whether the ground for making the objection is established.

• (6) Where—

• (a) the Public Guardian is satisfied that the ground of the objection is established, but

• (b) by virtue of section 13(7) of the Act, the instrument is not revoked,

the notice under paragraph (4) must contain a statement to that effect.

• (7) Nothing in this regulation prevents an objector from making a further objection under paragraph 13 of Schedule 1 to the Act where—

• (a) the notice under paragraph (4) indicates that the Public Guardian is not satisfied that the particular ground of objection to which that notice relates is established; and

• (b) the period specified in paragraph (2) has not expired.

Objection to registration: application to the court

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• (1) This regulation deals with any objection to the registration of an instrument as a lasting power of attorney which is to be made to the court.

• (2) The grounds for making an application to the court are—

• (a) that one or more of the requirements for the creation of a lasting power of attorney have not been met;

• (b) that the power has been revoked, or has otherwise come to an end, on a ground other than the grounds set out in paragraph 13(1) of Schedule 1 to the Act;

• (c) any of the grounds set out in paragraph (a) or (b) of section 22(3) of the Act.

• (3) Where any person—

• (a) is entitled to receive notice under paragraph 6, 7 or 8 of Schedule 1 to the Act of an application for the registration of the instrument, and

• (b) wishes to object to registration on one or more of the grounds set out in paragraph (2),

he must make an application to the court before the end of the period of 3 weeks beginning with the date on which the notice is given.

• (4) The notice of an application to the court, which a person making an objection to the court is required to give to the Public Guardian under paragraph 13(3)(b)(ii) of Schedule 1 to the Act, must be in writing.

Notifying applicants of non-registration of lasting power of attorney

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Where the Public Guardian is prevented from registering an instrument as a lasting power of attorney by virtue of—

• (a) paragraph 11(1) of Schedule 1 to the Act (instrument not made in accordance with Schedule),

• (b) paragraph 12(2) of that Schedule (deputy already appointed),