Lasting Powers of Attorney (LPA) are complex legal documents and care must be taken when drafting them to ensure they are completed correctly. The Office of the Public Guardian (OPG) will reject any forms that are incorrect and that don’t meet their standards. This can cause unnecessary delays and expense at registration, and at worst can leave you without a valid LPA if the errors aren’t discovered until after you have lost capacity to correct them.
Below we discuss some common LPA errors and how to avoid them:
- Using the wrong form
There are two types of LPA; health & welfare and property & financial affairs. The forms are largely very similar, so it can be easy to accidentally use the wrong form. Another common mistake is to mix up the pages of a form when putting them all together. For example, by placing a page from the health & welfare LPA into the property & financial affairs one. To avoid making this mistake make sure you check the bottom right corner of every page before sending your LPA to the OPG. This shows what type of form the page belongs to:
It’s also important to make sure you are using the most up to date form. The LPA forms were last updated 1 July 2015. The OPG will only register LPAs made on the old forms that were correctly completed before 1 January 2016.
- Missing pages
Make sure that you’ve included all the pages and none have been missed out. You might not complete every section as some are optional, such as section 7 where you can make your preferences and instructions known, but these pages do still need to be included. If pages are missing the OPG will not register the document, so double check the numbering.
LPAs are deeds, so the dating of them is extremely important and the OPG require these documents to be signed and dated in a precise order. Any ambiguity in the dates will cause the LPA to be rejected. Please take the time to slowly and carefully write the date in the appropriate boxes (with one digit per box). Common errors are 5s that look like 8s, 0s looking like 6s or 9s, and 7s that look like 9s. You should not overwrite the date if a mistake is made.
- Signing incorrectly
LPAs must be signed in the correct order. If they are signed in the wrong order they are invalid and the OPG can’t register them. The correct order is donor, then certificate provider, then attorneys and replacement attorneys.
Signatures must be made in pen, and correction fluid should not be used to rectify any mistakes.
The OPG needs to be able to take the LPA apart to be able to scan it. If the LPA is bound in such a way that they can’t remove the binding without destroying it they will unfortunately have to reject it. If you want to ensure your documents are safely held together when sending them to the OPG we’d recommend using an easily removable treasury tag.
- Being contradictory
Take care not to include any instructions that contradict with any other part of the form you have completed. For example, if you appoint your attorneys to act ‘jointly’ they must make all decisions together. If you then include an instruction stating that certain decisions must be made by one particular attorney this will be invalid. The best way to avoid this is to get professional advice on completing your LPA.
- Invalid or unworkable instructions
You can include instructions in your LPA. These are legally binding and your attorneys must follow them. You must make sure that the instructions you are including are worded correctly and are legally correct, otherwise the LPA cannot be registered.
Instructions can’t ask an attorney to act beyond their powers, nor can they ask an attorney to do anything illegal. Common examples are instructions asking the attorney to look after someone other than the donor’s best interests, asking them to assist with the donor’s suicide, or giving instructions on health & welfare in a property & financial affairs LPA and vice versa.
Many people do not include instructions in their LPA, but if you have complicated instructions we would recommend you speak to a professional as they can give you the best advice on whether your instructions are legally valid and how to word them.
The registration fee for LPAs is £82 per document. If they are rejected they must be reregistered, and this costs £41 per document if sent back within 3 months. If the corrected forms are sent back outside of this time limit you will need to pay the full fee again. Hopefully you are now aware of the common errors made when making LPAs and how to avoid them, so will avoid this unnecessary expense.
If you need to some help with the forms or would prefer that a professional drafted them for you most SWW members offer LPA drafting services. You can find a member local to you on our website https://www.willwriters.com/members/ or by calling the team on 10522 687888.
5th September 2018 at 6:42 pm
You say above “Common examples are instructions asking the attorney to look after someone other than the donor’s best interests”
In your opinion can an attorney use the donor’s assets e.g. pension income to pay for the lifestyle costs of the donor’s spouse as well as those of the donor?
5th September 2018 at 8:02 pm
Really useful as always and makes you check the understanding every now and again.