A Lasting Power of Attorney (LPA) is a legal document which allows you (the donor) to appoint people (attorneys) you trust to make decisions on your behalf when you’re no longer able to do so.

You can make a property and finance LPA and/or a health and welfare LPA. Each document costs £82 unless you get a reduction or exemption.

While you can apply and register an LPA yourself online, many turn to solicitors to execute them to avoid making a mistake and to get them accepted by the Office of the Public Guardian (OPG) as soon as possible.

Waiting times for an LPA stretch 20 weeks

Up until the Covid pandemic, applicants could expect to wait between eight and 10 weeks for the OPG to register an LPA, according to law firm Irwin Mitchell.

But now the OPG said it is taking up to 20 weeks to register an LPA if there are no mistakes. This includes the four-week statutory waiting period to allow for objections.

Fiona Bushell, will, trust and estates solicitor at Irwin Mitchell, said: “Like most places, the OPG no doubt had to deal with employees working from home and social distancing when in the office, which slowed processes down. Despite being two and a half years from the onset of the pandemic, these delays persist.”

Bushell said it’s likely the OPG is still dealing with a backlog of applications accrued during that period.

She added: “The application process is also largely paper-based, meaning it is labour intensive, although the government is moving towards digitisation. The OPG has to be very particular about the order in which the documents are signed.”

Latest statistics revealed that the OPG received 202,855 applications in England and Wales in Q1 2022, while in Q2, it received 192,958.

In Q1 2020 before the pandemic, it received 224,835 but in Q2 this dropped to 99,870. The majority are made by donors aged 75-84, followed by 65-74-year-olds, and they’re predominantly made by women.

What if you lose capacity during an LPA delay?

Given the delay in registering an LPA, many people making them will rightly worry about losing capacity in the meantime, and whether the document will still be valid.

During the process, a ‘certificate provider’ needs to sign the LPA to confirm the donor has mental capacity to make it. The certificate provider can either be a professional (i.e. a doctor or solicitor) or somebody who has known the donor for more than two years but who is not related to them, such as a friend or neighbour.

“If there are any concerns about the donor’s capacity and ability to make an LPA it is sensible to ask a doctor or solicitor to complete a capacity assessment,” Bushell said.

She added that provided the person making the LPA had capacity at the time the LPA was made, it will be valid once the OPG has registered it.

Bushell said: “This means there is no effect on the efficacy of the LPA if a donor loses capacity in the period between execution and registration.”

However, she added: “Clearly, there can be practical difficulties if a donor loses capacity after the LPA has been signed but before it has been registered. This is because attorneys cannot use the LPA prior to registration so if, for example, a donor’s house needed to be sold, bills needed to be paid or decisions needed to be made about the donor’s health during this time and the donor could not make these decisions then the attorneys would not yet have the power to make them on the donor’s behalf.

“This is why we recommend to clients that LPAs are sent for registration as soon as they have been signed. This means that, should a client lose capacity in the future, their LPA will be registered and ready to use at that point.”

She explained that if a house is owned jointly then the joint owner with capacity cannot sell the house without the owner who has lost capacity “being a party to the sale”.

“If there is no LPA in place then the owner who still has capacity could apply to the Court of Protection to obtain its permission for a replacement trustee to be appointed. However, this can be an extremely lengthy (and expensive) process so it is likely to be preferable to await the registered LPA. There is, unfortunately, nothing that can be done except be patient.”

Meanwhile, when it comes to other joint assets such as bank accounts, if one joint account holder loses mental capacity, banks can decide whether to allow the account holder who still has capacity to continue using the account or temporarily restrict its use to essential transactions only (e.g. living expenses, care bills etc.) until the LPA has been registered.

“However, there is no code of practice, only guidance issued by the British Bankers’ Association,” Bushell said.

“That’s why it’s important for people to consider putting in place LPAs before there are any issues with capacity,” she urged.

‘Sorry for the delays’

The OPG’s target is to register LPAs within 40 days. It said every LPA is first checked by a case worker to confirm its validity, and once confirmed, it can be registered even if the donor has lost capacity since making it.

In 2020/21, it shifted to hybrid working and processed 53,000 applications each month, rising to 60,000 per month in 2021/22, and 70,000 by March 2022. It added that monthly registrations are now at pre-pandemic levels.

A spokesperson, said: “We are sorry for any delays that customers have experienced. More staff have been recruited to process applications and teams have been working around the clock, with the number of LPAs registered each month now back to pre-pandemic levels.

“We are pressing ahead with plans to digitise LPA applications, making the process simpler and quicker for customers.”