Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) Regulations 2013
These Regulations amend the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (S.I. 2007/1253) (“the 2007 Regulations”). The amendments are as follows:
Regulation 3 substitutes a period of 4 weeks for the existing 6 week period that must elapse under regulation 12 of the 2007 Regulations between the date of the latest notice by which the Public Guardian notifies the donor or donees (as appropriate) of a lasting power of attorney (“LPA”) that an application to register has been received, and the date on which the LPA is registered.
Regulations 4 and 5 substitute a 3 week period for a 5 week period during which a donee or donor of the power, or a named person, must give notice of objection to registration to the Public Guardian under regulations 14 and 14A of the 2007 Regulations.
Regulation 6 substitutes a period of 3 weeks for the current 5 week period in which a person who wishes to make an application to the court objecting to registration must do so under regulation 15 of the 2007 Regulations.
Regulation 8 introduces a new basis on which a security given by a deputy to the Public Guardian in respect of the discharge of his or her functions can be discharged. Where the Public Guardian is satisfied that a new, replacement, security meets the requirements of regulation 35(3) of the 2007 Regulations, the amendment to regulation 37 of those Regulations introduced by regulation 8 provides that the original security will be automatically discharged after 2 years without the need for an application to court. The 2 year period runs from the date on which the Public Guardian notifies the deputy of his or her satisfaction as to fulfilment of regulation 35(3) criteria under regulation 35(4) of the 2007 Regulations, itself a new requirement provided by regulation 7.
Regulation 9 amends Schedule 1 to the 2007 Regulations (the forms of instrument for the property and financial LPA or the health and welfare LPA), to reflect the change in the time period made by regulation 3 to regulation 12 of the 2007 Regulations.
Regulations 10 to 12 amend Schedules 2 and 4 to the 2007 Regulations (forms LPA 001, LPA 003A and LPA 003B) to reflect the changes made by regulations 4 to 6. These forms are prescribed for the purposes of providing notice of intention to apply for registration of an LPA, and notice of receipt of application for such registration under paragraphs 6, 7 and 8 of Schedule 1 to the Mental Capacity Act 2005.
Regulation 13 makes transitional provision. Under the 2007 Regulations, notice to a named person that an application for registration is about to be made must be given either before, or at the same time as the application is made. It is therefore likely that for applications made close to the 1st April 2013 commencement date, the form of notice that has actually been given will be the un-amended version referring to a 5 week rather than a 3 week period for the lodging of an objection to registration (or application to court). Regulation 13(2) makes provision for this situation by requiring that the original time periods (those amended by regulations 3 to 6 of these Regulations) apply to such cases. Regulation 13(4) addresses the problem that would arise from inadvertent use of the un-amended version of the LPA 001 form for notification of a named person after the 31st March 2013, because that form refers the named person to what will be an incorrect time period for objection or application to court. Where the named person makes an objection or an application within the original 5 week period (to which an outdated form will refer), the objection or application will be deemed to be “in time” in relation to the new time periods notwithstanding that it has been made later than the new 3 week period. This provision will apply for a 6 month period from the commencement of these Regulations.Forms LPA 001, LPA 003A and LPA 003B will be available for download in their amended form on the website of the Office of the Public Guardian from the date on which these Regulations come into force.