Fee changes at the Office of the Public Guardian

 In Wills

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The Office of the Public Guardian (OPG) is the administrative office of the Public Guardian which role is designed to ensure that those entrusted with decision making authority on behalf of those incapable of making decisions for themselves do so appropriately without abuse and in accordance with the Mental Capacity Act 2005 (MCA 2005).

The fee structure is up for review and views are invited on the proposals contained in their Consultation Paper published on 28 February 2011. The consultation period is apparently due to end on 21 May 2011 and the initial date for the coming into effect of the changes (1 April 2011) has therefore been set back to 1 July 2011.

The background

The premise for increasing fees in the teeth of a recession is that the workload is up (estimated application numbers for this year are 166,000 compared to 126,000 last year) and the OPG needs to be funded entirely from its fee income. It is therefore trying to re-model itself in order to fully fund itself in the future and to ‘continue to offer a timely service to our customers’.

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Currently, there is a fair and equitable fee policy which is supposedly proportionate to the services provided to the customer. There are exemptions for fees it the applicant is in receipt of certain means tested benefits and has not been awarded damages of more than £16,000 that were disregarded when determining eligibility for the benefit. There is also a system of remission of fees based on bands of income with no remission once income exceeds more than £16,000 per annum.

The proposals

  1. Increasing the registration fee for EPAs & LPAs from £120 to £130
  2. Implementing a new ‘Resubmission Fee’ of £65 each time an LPA is resubmitted to the OPG within three months of it being returned to the Applicant as invalid
  3. Discontinuing the production of LPA office copies by the OPG, except in extreme and limited circumstances, and for a £50 fee.
  4. Removing the Application to search the Registers fee, which is currently £25
  5. Replacing Type 1, 2A and 2 supervision fees with a flat fee of £320 and introducing an administration fee of £35 for those in Type 3 requiring the de minimis level of supervision
  6. Raising the maximum threshold of capital for those cases qualifying for Type 3 supervision from £16,000 to £21,000 over a period of 4 years
  7. Introducing a new Fee Remissions policy of 50% for those who have a gross income of up to £12,000
  8. Allowing the Public Guardian to vary the levels of fees payable in the future, examples of which could include implementing a new discounted fee for any LPA applications that are submitted together; or removing or discounting the LPA registration for Armed Service personnel
  9. Renaming a number of OPG fees in order to make it clearer what they cover.

LPAs & EPAs

The current policy of not refunding any of the fee if the donor dies during the process of registration is not apparently to change so increasing the fee to £130 will probably put some people off at a time when their own income is likely to be under just as much pressure as that of the OPG.

Similarly, there is no discount currently for submitting both a Property & Affairs LPA and a Personal Welfare LPA at the same time and again no suggestion that this might be a ‘fair and equitable’ approach when reviewing the fee structure. For those clients who are married and each wish to register 2 LPAs the costs will escalate to £520 if these proposals are implemented.

Against this, there is the sensible proposal to reduce the cost of re-submitting any application within three months of rejection from the full fee to £65. Whilst everyone hopes that their LPA will not be rejected there are a fair number of cases where some detail is not quite correct and the LPA is rejected. This is hardly surprising given the number of pages to check in the form (admittedly reduced from the even larger number at the start) and the number of people involved in signing and dating various forms in order to make a submission.

The reduction in fee is welcome given the other costs involved in starting again, which if a firm of solicitors is responsible for the error will be costs that the firm will undoubtedly have to bear.

Conclusion

Embarking initially on a consultation which was not due to end until after the proposed changes were due to come into effect was not the most hopeful start for a review. However, the start date was subsequently corrected.

To increase the charges on the registration of LPAs and EPAs at a time when everyone is feeling the pinch is insensitive and may have the effect of deterring the very people who should make and register these powers.

Nonetheless, clearly if your firm is engaged in much of this are of work then do contact the Ministry of Justice to air your views. The consultation document is downloadable in full at http://www.justice.gov.uk/consultations/opg-fees-consultation.htm

© Gill Steel LawSkills Ltd

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