Once a Lasting Power of Attorney (LPA) has been registered with the Office of the Public Guardian (OPG), it becomes a legally binding document. Life is, however, unpredictable and that might mean that you need to make changes to your LPA after it has been registered. This article will guide you through the steps and considerations involved in modifying an LPA after registration.
The process of amending or changing the details in an LPA once it has been registered is not easy. The options are very limited once the document has been signed. So, it’s important that no amendments are made once the donor has signed the document because this could affect whether the document will be accepted for registration. Equally, if an amendment is made to the document when the LPA has already been registered, this could affect its validity. In some cases you might need to start again with a new LPA application.
Why You Might Need to Change an LPA
There are several reasons that might prompt the donor to consider changing the LPA after it has been registered:
- Changes in Personal Circumstances
- Attorney’s Inability to Act
- Change in Preferences
- Legal or Financial Changes
Changes in Personal Circumstances
If the relationship with your attorney changes such as through marriage, divorce, or a breakdown in trust, you might want to replace or remove them. The LPA allows you, however, to include one or more attorneys to act alone or jointly. It also includes provision for a replacement attorney. So, to a certain extent you can make provision for most eventualities. Of course, if you get divorcced, you are most likely to want to change your LPA.
Attorney’s Inability to Act
If the attorney can no longer act on the donor’s behalf due to their own incapacity, death, or relocation, a new attorney will need to be appointed. If a joint attorney can no longer act or dies, the LPA will fail unless there is a replacement attorney appointed. The remaining attorney cannot act on their own.
Change in Preferences
The donor might change their mind about who they trust to make decisions for them or they may want to adjust the scope of their powers. They may also want to add ‘instructions or preferences’. The donor may be able to do this in a letter of wishes, see more below, although that may not be legally binding.
Legal or Financial Changes
Changes in the law or the financial situation might require adjustments to the powers granted in the LPA.
The Process for Changing an LPA After Registration
Once an LPA is registered, the process for making changes is more complex than during its initial creation. Here’s a step-by-step guide:
Decide the type of change needed
First, determine the extent of the change you need:
- Minor Changes: Minor changes include updating contact details, such as an attorney’s address or phone number. These can often be updated without needing to redo the LPA.
- Significant Changes: Significant changes include adding or removing an attorney or changing how attorneys must act. These usually require creating a new LPA.
Cancelling the existing LPA
If the changes are substantial, you may need to cancel the existing LPA and create a new one. To cancel an LPA, you must send a written statement called a “deed of revocation” to the OPG. The deed must include:
- The full name and address of the donor.
- A statement that you wish to revoke the existing LPA.
- Details of the LPA, including the date it was made.
- A declaration that you have the mental capacity to revoke the LPA.
- Your signature and the date.
Once the OPG has processed the revocation, the LPA will no longer be valid and you’ll need to create and register a new one to replace it.
Creating a New LPA
If the changes are significant, such as appointing a new attorney or changing the scope of their powers, you will need to create a new LPA. This involves the same process as creating the original LPA:
- Choose Your Attorneys: Decide who will be your new attorney(s) and how they will act (jointly, severally, etc.).
- Complete the LPA Form: Fill out the appropriate LPA form—either for Health and Welfare or Property and Financial Affairs.
- Sign and Witness: The new LPA must be signed by you, your attorneys, and witnesses.
- Register the New LPA: Submit the new LPA to the OPG for registration, along with the appropriate fee.
- Activate the LPA: activate the Lasting Power of Attorney using the Government Use a Lasting Power of Attorney service.
Inform Relevant Parties
Once the new LPA is registered, inform all relevant parties, such as financial institutions, healthcare providers and anyone else who needs to know about the change. Make sure they have the updated version of your LPA to avoid any confusion or disputes.
Storing the LPA
Ensure that the original and any copies of the old LPA are destroyed once the new LPA is in place. Store the new LPA safely and inform your attorneys and loved ones where it is kept.
Alternatives to Changing an LPA
In some cases, you may not need to make formal changes to an LPA. Here are a few alternatives:
Using a Letter of Wishes
Instead of modifying the LPA, you could write a letter of wishes to guide your attorneys on how to act in specific situations. While not legally binding, this can provide clarity and help attorneys understand your preferences.
Resigning as an Attorney
If an attorney wishes to step down, they can resign by completing form LPA005 and “disclaiming their appointment“. There are various steps to take to disclaim the appointment including notifying the OPG and other attorneys. The LPA remains valid with the remaining attorneys.
Court of Protection
If there are disputes or complications, you might seek guidance from the Court of Protection. The court can make decisions about LPAs and resolve conflicts between attorneys.
Important Considerations
When making changes to an LPA, the donor must have the mental capacity to make or change an LPA. If there is any doubt about the mental capacity of the donor, a mental capacity assessment may be required.
Consider seeking legal advice before making changes to ensure the new LPA is valid and reflects your wishes. A solicitor can help navigate complex situations, such as disputes between attorneys or complicated financial arrangements.
There are fees associated with registering a new LPA. If you’re on a low income or receive certain benefits, you may be eligible for a reduction or exemption from the fee.
Conclusion
Making changes to a Lasting Power of Attorney in England after it has been registered is a process that requires careful consideration and adherence to legal procedures. It may be due to a change in personal circumstances, a shift in your preferences or the need to update your attorneys. Understanding the steps involved, however, will help ensure that your LPA continues to serve your best interests. By following the correct procedures, you can ensure that your LPA remains a reliable safeguard for your future, reflecting your current wishes and needs.
