Notice of intention to register

Contents

1. Notice of intention 2. Lasting power of attorney 2.1. How to send notice 2.2. Notice from the Public Guardian 3. Enduring power of attorney 3.1. Who must be notified? 3.2. How does the notification rule work? 3.2.1. Less than three relatives need to be notified 3.2.2. More than three relatives need to be notified 3.3. Relatives who aren’t entitled to notification 3.4. What if notifying the donor will cause problems?

Before you can register a lasting power of attorney or an enduring power of attorney, you must give notice of your intention to register. This is intended to protect the interests of the person who is granting the power of attorney, called the ‘donor’.

A lasting power of attorney (LPA) can only be effective when the document is registered. However, before registration can go through, notification must be made to all those listed (if any) in the lasting power of attorney as 'named persons'. These 'named persons' have 5 weeks from the date of the notification, to object to the registration. This functions as a safeguard for the donor. Relatives are not entitled to notice unless they are named in the lasting power of attorney.

You must send notice of your intention to register a lasting power of attorney using an 'LPA 1 - Notice of intention to register an LPA.' Either the donor or the attorneys named in the LPA can register the document; both need to send notice.

If the attorneys in the LPA are acting together, they must all apply for the registration and state their intention to register by signing this form.

The Public Guardian will send notice to the donor (if the attorneys are registering) or to the attorneys (if the donor is registering) to inform either party of the intention to register. In both instances, they will be given the opportunity to object to the registration.

Only attorneys listed in an enduring power of attorney (EPA) can register the document. Before registration can go through, however, the attorneys must give notice to all those who require it under the Mental Capacity Act using an 'EP1 PG - Notice of intention to register an EPA (England & Wales).'

The donor must be notified using EP1 PG. You must also notify certain of the donor's relatives. The relatives who must be notified are set out the Mental Capacity Act (MCA). In addition, the MCA prescribes the order in which the relatives must be notified. The order is based on how closely related the relatives are to the donor and categorises relatives into different classes. The prescribed order is set out below.

1. Donor's spouse or civil partner

2. Donor's children (including adopted children, but not step-children)

3. Donor's parents

4. Donor's brothers and sisters, whether of the whole or half blood

5. The widow or widower or surviving civil partner of any deceased child of the donor

6. Donor's grandchildren

7. The children of the donor's brothers and sisters of the whole blood

8. The children of the donor's brothers and sisters of the half blood

9. Donor's uncles and aunts of the whole blood

10. The children of the donor's uncles and aunts of the whole blood

Notice must be given personally to the donor, whilst relatives must be given the notice by first class post and must all be sent within 14 days of each other.

At least three relatives must be notified in total. To work out which three relatives must be notified, you must use the prescribed order in the MCA, starting with the donor’s spouse or civil partner. If there is no spouse or civil partner, or they are dead, then you move on to the next class, which is the donor’s children. If there are no children, or not enough children to satisfy the requirement that three relatives are notified, you move on to the next class in the order. You repeat this process until you have notified three relatives.

There are two exceptions to the notification rule, the first resulting in less than three relatives being notified, and the second, which may result in more than three relatives being notified.

Where there are less than three relatives alive who fall within the classes set out in the MCA, you only have to notify as many relatives as are alive.

For example, if the donor is only survived by their spouse and a single parent, then only their spouse and parent need to be notified; giving a total of two relatives who need notification.

In certain circumstances all relatives in a particular class must be notified, which can result in more than three relatives being notified in total. This exception applies where:

• There is more than one relative in a particular class, for example, the donor’s children
• There are less than three relatives in the classes preceding that class in the prescribed order

So if, for example, the donor has a spouse,1 child, 10 siblings and their parents are dead, then all 10 siblings must be notified; giving a total of 12 relatives in all who must be notified.

There are some situations where relatives, who ordinarily would be entitled to notice, are not entitled to be notified. This applies when:

• The attorney is not be able, after reasonable efforts, to obtain the address of one of the relatives in the list
• Relatives are not yet 18 years of age
• Relatives are not mentally capable

If this is the case, the attorney should notify the Office of the Public Guardian of the inability to give notice so that this fact is properly recorded and taken into account.

In addition, there may be certain situations where an attorney does not want to notify a relative. If this is the situation, you will have to apply to the Court of Protection. The Court is most reluctant to deprive relatives of their legal entitlement to notice unless there are exceptional circumstances. However, they may be willing to do so if they are satisfied that serving notice would be undesirable, impracticable or that it would serve no useful purpose.

There may be instances where it will be inappropriate to give notice to the donor using EP1 PG because it will cause too much distress. If this is the case, an application should be made to the Court of Protection before you apply to register. The Court will then consider whether to dispense with notice. You cannot dispense with notice to the donor unless the Court agrees. For more information on applying to the Court of Protection, go the HM Court Service website page for forms and guidance and select the Court of Protection from the dropdown menu. Once on the Court of Protection’s form and guidance page, download application pack 7.