A Lasting Power of Attorney is a powerful legal document, but it cannot be used until it has been registered with the Office of the Public Guardian. Understanding when registration is needed, how long it takes, and when each type of LPA actually comes into effect helps you plan appropriately and avoid problems later.
In this guide
Why registration is essential
An unregistered LPA has no legal effect. Banks, care homes, doctors, and other institutions will not accept an unregistered LPA. Registration is not optional - it is a legal requirement before the document can be used.
The registration process includes safeguards to protect the person making the LPA (the donor). During registration, certain people can raise objections if they have concerns.
How registration works
Registration involves several steps:
- The completed LPA is submitted to the Office of the Public Guardian (OPG)
- The OPG checks the document is correctly completed
- A mandatory waiting period of at least 4 weeks allows for objections
- If there are no problems, the LPA is registered and stamped
- The registered LPA is returned to the applicant
The whole process typically takes 8-10 weeks, though times can vary. Registration fees apply.
When to register
You can register an LPA at any time after it is signed. Many people choose to register immediately so the LPA is ready if needed. Others wait until they anticipate needing it.
However, waiting carries risks. If you lose capacity before the LPA is registered, you cannot register it yourself. While your attorneys can register on your behalf, this takes time. During that period, no one can act on your behalf.
Many families across Kent, including in Tonbridge and Sevenoaks, register LPAs promptly to ensure they are ready when needed.
Property and Financial Affairs LPA: when it takes effect
A Property and Financial Affairs LPA can be used as soon as it is registered, even if the donor still has full mental capacity. This is useful because:
- Attorneys can help with financial administration while the donor is still able to oversee things
- It allows for a gradual handover of responsibilities
- The donor can authorise specific tasks without losing overall control
The donor can, if they wish, include restrictions specifying that the LPA should only be used if they lose capacity. However, this is relatively unusual.
Health and Welfare LPA: when it takes effect
A Health and Welfare LPA works differently. Even after registration, it can only be used when the donor lacks capacity to make the specific decision in question.
For example, if the donor has capacity to decide where to live but not to make complex medical decisions, the attorneys could make medical decisions but not housing decisions.
This means Health and Welfare LPAs cannot be used while the donor is capable of making their own decisions, even if the donor wants help.
Common misunderstandings
Several misunderstandings are common:
- "My spouse can automatically make decisions for me": Not true. Even spouses need an LPA to make financial or health decisions on behalf of an incapacitated partner.
- "Signing the LPA is enough": No. Registration is required before the LPA can be used.
- "I can register when I need it": Registration takes weeks. If you lose capacity suddenly, it may be too late to act quickly.
- "One LPA covers everything": There are two types of LPA. You may need both for comprehensive coverage.
What if there is no LPA when capacity is lost?
If someone loses mental capacity without a registered LPA in place, managing their affairs becomes much more complicated. Options include:
- Deputyship: A family member can apply to the Court of Protection to become a deputy, but this is expensive, time-consuming, and involves ongoing supervision
- Court orders: Individual decisions may require specific court applications
- Limited access: Access to bank accounts and other assets may be restricted
Having an LPA in place avoids these problems.
Key takeaways
LPAs must be registered before they can be used. A Property and Financial Affairs LPA can be used immediately after registration; a Health and Welfare LPA can only be used when the donor lacks capacity. Registration takes several weeks, so acting early is advisable. Without a registered LPA, managing someone's affairs after they lose capacity is difficult and expensive.
Frequently Asked Questions
Does an LPA need to be registered?
Yes. An LPA must be registered with the Office of the Public Guardian before it can be used. An unregistered LPA has no legal effect. Registration can take several weeks, so it is advisable to register early rather than wait until the LPA is needed.
When can a Property and Financial Affairs LPA be used?
Once registered, a Property and Financial Affairs LPA can be used immediately, even while the donor still has capacity, unless the donor has specified otherwise. This allows attorneys to help with financial management while the donor is still able to oversee things.
When can a Health and Welfare LPA be used?
A Health and Welfare LPA can only be used after registration AND when the donor lacks capacity to make the specific decision in question. Attorneys cannot make health decisions while the donor is capable of making them.
How long does LPA registration take?
Registration typically takes 8-10 weeks, though times can vary. There is also a mandatory 4-week waiting period during which people named in the LPA can object. Registration should be completed well before the LPA is likely to be needed.
What happens if an LPA is not registered before someone loses capacity?
An unregistered LPA cannot be used. If someone loses capacity before their LPA is registered, the registration can still proceed but it must be done by the attorneys. If there is no LPA at all, a costly court application for deputyship may be needed.