Joint Committee on Statutory Instruments Twenty-Eighth Report


Memorandum from the Lord Chancellor's Department


1. The Committee has asked the Lord Chancellor's Department to submit a memorandum on the following point:

Rule 9(2) increases the fee payable on lodging an application for registration of an enduring power of attorney from 75 to 220. Explain the reasons for this sharp increase.

2. Under Treasury guidelines, the Court of Protection is required to meet its running costs through fees paid by clients, and such fees must reflect the actual cost of providing the service. The previous fee structure was unrealistic. This was due to a historic lack of investment in the staff of the Public Trust Office (the executive agency that previously carried out administrative functions on behalf of the Court of Protection) and in the infrastructure required to deliver the service. The legacy of this under-investment was poor service levels and an unrealistic fee structure which did not reflect the service that was required. In April 2001, the Lord Chancellor set up a new agency, the Public Guardianship Office (PGO) to take over Mental Health and enduring power of attorney functions from the Public Trust Office. The PGO has embarked on a major catch-up programme, including investment in case management IT systems and plans for a smaller, better skilled workforce. This means that the PGO can provide better and more comprehensive levels of service to be delivered to clients, whilst enabling the agency to become more efficient hence limiting the pressure for further increases to fees.

3. The Court of Protection's fee structure was also criticised by the National Audit Office in 1999 because certain categories of clients subsidised services received by others. The Lord Chancellor's Department gave a commitment to the Public Accounts Committee that this cross-subsidy would be brought to an end. Although the enduring power of attorney fee was revised in September 2000, the fee set then did not cover all the elements of cost associated with enduring power of attorney work. Business analysis carried out during the major programme of change clarified this omission and enabled the PGO to determine the cost of the future service. The PGO has now devised a fees policy that is closely aligned to its business processes and the fee has increased to reflect the true cost of the work involved in registering an enduring power of attorney. This work includes providing advice and support during registration, handling any disputes, advising attorneys, and cancelling the registration on the death of the donor.

4. The resolution of disputes accounts for almost a third of the cost of the enduring power of attorney registration service. Disputes arise from relatives of donors of enduring powers of attorney objecting to registration, which can involve the Court in prolonged correspondence and expensive hearings. The right of relatives to object to registration is an intrinsic part of the legislation, and acts as the major safeguard against fraud and misuse of enduring powers of attorney.

26 April 2002


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