The Office of the Public Guardian are referring over 100 cases each to the Court of Protection to “sever” invalid provisions in a Lasting Power of Attorney sent in for registration.
The term ”sever” relates to the courts power to strike out or omit and invalid provision in order for registration to take place. The OPG are must refer the matter to the Court of Protection if they believe a provision is invalid as it is a requirement of the Mental Capacity Act 2005. The court has no power to amend or implement different provisions if it is deemed the provisions are invalid.
“Provision” covers all aspects of the document including restrictions guidance and in some cases the appointment of the attorney’s.
It is critical when preparing Lasting Power of Attorney to ensure provisions are clear and conform to the requirements and procedures under the act. There will be no opportunity to correct errors or provisions without executing a new document resulting in additional fees.
At Edward Hands & Lewis we have qualified and experienced solicitors on hand to provide impartial advice about Lasting Power of Attorney and applications to the Court of Protection.
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