Following this, there were mixed views in the industry about whether this wording was strictly necessary, and it broadly came down to the views of each provider’s compliance department.
If a provider was insisting on that wording being present but it was not present for a particular individual, the individual would need to revoke the existing LPA and set up a new one.
This was fine if the individual still had mental capacity but became a lot more challenging if they did not and would necessitate an application to the Court of Protection to add the authority retrospectively.
In March 2022, the OPG revisited its guidance, and it no longer says an individual needs to include that wording, which is good news. However, it does still say that legal advice may be necessary, and it reports that at least one major financial institution still requires it.
Anecdotally this seems to be the case, and it seems that some providers do still insist on the wording being present.
In terms of where that leaves clients and advisers, it may be sensible simply to suggest the client includes the wording if they currently use a DFM or might consider using one in the future. Certainly, there does not seem to be any drawback in including it.
Sign up for the ‘use an LPA’ service
So far, we have looked at how you set up a POA and what you can include in it. The next step is sending it out to third parties, and that is what these next two points are about.
In July 2020, the OPG set up a new online service called "use an LPA", which third parties such as banks and investment providers can use to verify an LPA rather than relying on seeing a paper version.
Clients registering an LPA on or after July 17 2020 will receive a reference number and an activation key, which they can use to create an online account. Once they have done that, they can add the LPA to the account and a generate a secure temporary access code, which they can give to a third party. The third party can then view certain details of the LPA online.
On paper, this is a positive development from the OPG. However, the wheels of change turn slowly, and we are still in the early adoption stage. While the OPG reports "growing interest" among organisations, it might be a while before it is used widely.
Also, while the service will indicate whether there are specific instructions or restrictions in the LPA, it does not say what they are. In the meantime, providers may still want to see the original document or a certified copy.
