Top 10 Mistakes When Making an LPA
According to research released in 2020 the Office of the Public Guardian stated that they receive 67,000 Lasting Power of Attorney (LPA) applications each month meaning about 3,100 each day.
Unfortunately, not all of these applications are completed correctly for many different reasons. Statistics say that 15% of applications are sent with mistakes, these cannot be registered and are returned.
Having an LPA returned with a mistake usually results in extra costs and time delays. The current timescale for registering an LPA is 20 weeks, further delays can cause more stress and anxiety for the donor, especially elderly donors.
Here our Director and Paralegal, Koren, will explain the top 10 mistakes when making an LPA. Hopefully by reading the common mistakes made it will help prevent any from happening in your own application if you have decided to complete yourself.
1. Using pencil and tippex
By using pencil or tippex there is no way of the OPG understanding if the application has been amended or who in fact amended the application. To be safe the OPG do not accept pencil or tippex amendments. The OPG understands that mistakes can happen so if a mistake is made just ensure it is neatly crossed out and initialled.
2. Missing/mixing pages
Pages can be mixed up inadvertently, especially if you are making the two types of LPA at the same time and even more so if your partner is also making an application at the same time. It is very important to make sure you check the numbering of your documents at the bottom right-hand side; this will also tell you which form the page belongs to – either the LP1F (Property and Financial Affairs) or LP1H (Health and Welfare).
3. Application being signed in the wrong order
When it comes to the signing of both your Health and Welfare and Property and Financial Affairs LPAs it is essential that they are signed in the correct order. An LPA is a legal document therefore future dating is a no-go zone – it is classed as a criminal offence – any ambiguity will cause the LPA to be rejected.
For Property and Financial Affairs:
a) The donor sign and dates section 9 first followed by their witness
b) The certificate provider completes, signs and dates section 10
c) The attorneys and replacement attorneys sign section 11 alongside their witnesses
d) The applicant then signs section 15 (this may be the donor or the attorney. If more than one attorney has been appointed jointly in section 3, they will all need to sign).
For Health and Welfare Decisions:
a) The donor signs and dates section 5 first followed by their witness
b) The donor signs and dates section 9 followed by their witness
c) The certificate provider completes, signs and dates section 10
d) The attorneys and replacement attorneys sign section 11 alongside their witnesses; and
e) The applicant then signs section 15 (this may be the donor or the attorney. If more than one attorney has been appointed jointly in section 3, they will all need to sign).
4. Not using the correct form
Many people do not realise there are two separate forms, one is the Property and Financial Affairs document and the other the Health and Welfare document. It is important the correct forms are used for the correct topic.
Property and Financial Affairs relate to decisions such as managing a bank or building society account, paying bills, collecting benefits or a pension or selling your home. Health and Welfare, on the other hand, relates to your daily routine, medical care, moving into a care home and
life-sustaining treatment. If you are unsure which form to use, please do ask for advice either from us at Pro-law or the OPG directly.
It has also been known for out-of-date forms to be used, if you are writing your own LPAs please ensure you download these directly from the Government website.
5. Not staying in the boxes!
It is very important to ensure that all signatures and text are within the boxes provided on the forms as this may result in rejection of the forms. There are continuation pages provided if needed for text. Some signatures are bigger than others but make sure it is kept within the four lines!
6. Life-sustaining treatment
On the Health and Welfare LPA there is a section for life-sustaining treatment. This is where you sign to say you either give or do not give your attorneys power to make decision on life sustaining treatment. It has been known for this box to be missed out and completely ignored which results in a rejected application. Please ensure you state your decision to avoid rejection.
7. Preferences and instructions
It is worth remembering when you are creating your LPAs that there is space for preferences and instructions on each form. We recommend you make use of the preferences section by thinking about some of the following:
a) How often you would like haircuts, manicures and pedicures
b) How much exercise you would like to have if physically able to do so
c) How much fresh air you would like to have
d) Preference of care home
e) If you would like your pets to live with you as long as possible.
f) Your preferences with making investments and charitable giving
g) Your preferred bank or building society
Please note though that this is general guidance to your attorneys and they do not legally have to follow the preferences if they feel an
alternative solution is in your best interests.
When it comes to instructions though you must be careful, remember you are appointing people whom you trust to make decisions. Instructions must be followed, which in turn could then restrict the attorney’s ability to make certain decisions making their job more difficult than it needs to be. Creating a lot of instructions for your attorneys is generally thought to be undesirable and it is best to restrict these to the most important issues, if any are needed at all. Also, the OPG reads these and may think your instructions are contradictory or unacceptable if they do not follow your best interests, so this may result in the OPG rejecting your LPA or them having to apply to the Court of Protection to sever any instructions that hamper the attorneys from acting in your best interests.
8. Not using appropriate certificate providers
It is the certificate provider’s job to ensure that the person making the LPA (the donor) understands the LPA. It is a safeguarding process to help make sure there is no undue influence or pressure involved by the attorneys against the donor. A certificate provider can be either someone who has known the donor in a personal manner for over two years e.g., a friend or neighbour, or a person who has relevant professional skills such as a solicitor, social worker or registered healthcare professional (and such providers may charge for the services which they are entitled to do so!).
Another common mistake when making LPAs is not using an appropriate certificate provider. If you are one of the following you cannot be a certificate provider (please see LP12 Make and register your lasting power of attorney: a guide (web version) – GOV.UK (www.gov.uk) for the full exhaustive list).
a) An attorney or replacement attorney for the LPA
b) A member of your (as the donor) or your attorney’s families (wives, husbands, civil partners, in-laws and step-relatives); and
c) An owner, manager, director or employee of a care home where you (as the donor) lives, or a member of their family.
9. Asking your attorneys to carry out unlawful instructions
By unlawful instructions these are those such as instructions to assist with suicide or criminal activity or including Health and Welfare instructions that relate to Property and Financial Affairs and vice versa. If the OPG believe the instruction to contain an unlawful statement they will seek further advice from the Court of Protection, this may lead to words being severed from the LPA or refusal to register.
10. Not asking for advice from Pro-law!
We don’t just offer an LPA writing service; we offer a check and send service too. We can check your completed LPAs for you before you lodge them with the OPG for a small fee.