Question to the Ministry of Justice:

To ask the Secretary of State for Justice, if he will make an assessment of the potential merits of bringing forward legislative proposals to require the Office of the Public Guardian to notify all nominated persons when a (a) power of attorney and (b) lasting power of attorney is made.

General, otherwise known as ordinary, powers of attorney are governed by the Powers of Attorney Act 1971. They allow a donor to give power to an attorney to manage their affairs for a defined period of time. There is no requirement to name or notify nominated persons and the Public Guardian is not involved in the process. Powers of attorney are an important mechanism for supporting agency arrangements, often in a commercial context, and there are no plans to change this arrangement to require notification of nominated persons.

Lasting Powers of Attorney (LPAs) are governed by the Mental Capacity Act 2005 which requires that any nominated persons are notified at the point when an application is made to the Office of the Public Guardian to register the LPA. An application to register an LPA can be made either by the donor or by one or more attorneys named in the LPA. Currently, it is the applicant’s responsibility to notify any nominated persons. The Public Guardian maintains a register of all registered LPAs and anyone can request a free search to check if there is a registered LPA for a relative or friend.

The Powers of Attorney Act 2023, when implemented, will improve the process for notification and objections for LPAs. The Public Guardian will in future be responsible for issuing notices to the donor, their attorneys and any persons to be notified that the LPA has been received for registration and appears to be validly made. Furthermore, anyone who is aware that an LPA is being made will be able to object to its registration at an earlier stage in the process if they have concerns. These changes will strengthen the existing safeguards in the system.