Ten common mistakes made when creating an LPA
At OPG, we receive a large number of lasting power of attorney (LPA) forms from solicitors on behalf of their clients. Around 15% of these have errors of various kinds
You can help avoid making mistakes on your client’s LPA, by checking for the following errors:
1.Using the wrong form
As there are two types of LPA, many people accidentally use the wrong one. A lot of people use the health and welfare form, when they meant to use the property and finance form. Another common mistake is using an out of date version of the LPA forms or mixing both types of LPA applications up.
2. Forgetting your client’s name
Half way through the application you may forget who the client is, who the certificate provider is and who the witness is (you). You may even sign the form where the client is supposed to. It’s essential to get someone to check over the forms before sending them to OPG,
You can avoid making mistakes such as these by using the online LPA tool. It’s designed to cut out repetition and will prompt you if something seems wrong.
3. Being vague on life sustaining treatment
This isn’t just a tick box on the health and welfare form, it’s a matter of life and death. This page is treated very seriously by Parliament, the Courts and doctors. If your client wants to allow their attorney to make these decisions and you get it wrong, it automatically defaults to the attorney not having any power. We can’t make any exceptions.
To avoid this, make sure the correct box is ticked, it’s signed and filled in correctly. Don’t contradict it later by an instruction to do the opposite.
4. Making the unlawful compulsory
If we consider a part of the form to contain something unlawful, we have a statutory duty to seek guidance from the Court of Protection. This won’t always invalidate your LPA, but it will slow it down
We may ask the Court to sever the offending words, after asking for the donor’s consent. The common things we apply to sever or will refuse to register are:
-instructions telling attorneys to make gifts which don’t comply with Section 12 of the Mental Capacity Act 2005. Only the Court can authorise these
-instructions to assist with suicide or criminal activity
-instructions in a property and finance LPA that relate to health and welfare and vice versa (we appreciate that sometimes there is an overlap)
-instructions to follow the decision of someone else who isn’t an attorney.
5. Being a contrary Mary
One of the things that can make any legal document unworkable (if not invalid) is contradiction; saying ‘Do A’ on page one, and ‘Don’t do A’ on page 2. This commonly happens in appointment types, by
appointing joint and several attorneys, then instructing them all to make decisions. You need to appoint joint for some, joint and several for other decisions
appointing jointly, but saying later that one has a casting vote, they can decide by majority or have different powers
appointing jointly or joint and several, but saying later that only one attorney can deal with business affairs. Your client needs two LPAs.
6. Missing pages out
Have you checked the numbering and made sure all your pages are there? It doesn’t help us if you bind pages together; we still have to take it apart to scan.
7. Signing the form in the wrong order
It says on the form who has to sign it first then who next. Try not to get the dates wrong. Please don’t sign the application page saying everything has been signed before it’s actually been signed. It’s a criminal offence to make a false statement on an LPA application form.
8. A few signatures short of a deed
For a document to be a deed, it has to be signed and witnessed. For LPAs there are additional procedures, like having a certificate provider and needing to register the document before it can be used. If signatures or details (like witness names) are missing that make it legally invalid and we won’t be able to register it.
9. Using pencil or Tippex
If you use pencil or Tippex, we can’t tell how (or whether) it has been amended, and who did it. Applications with pencil or Tippex amends will not be registered. Please use ink and witness any amendments in the traditional way.
10. Don’t ask us
Of course you can ask us! We can tell you if what you’ve drafted would make us want to sever or refuse to register your LPA, especially if your client wants something unusual..
Free Consultation available for anyone from Bexhill, Hastings, Rye, Battle or other location in East Sussex looking to make their LPAs.
Source: Office of the Public Guardian
This message was added on Thursday 9th March 2017