Avoid these common mistakes when setting up your Lasting Power of Attorney! Learn from our expert, Rebecca Seeley Harris, as she shares the top 10 mistakes in Power of Attorney applications.
With there currently being a 20 week delay in processing the Lasting Power of Attorney it makes sense to get it right first time. The Office of the Public Guardian who receive about 67,000 LPA applications a month have reported that 15% of applications have errors of some kind and some have to be returned. So, it is very important to avoid these mistakes.
Top 10 mistakes to avoid
- Certificate provider cannot be family
- Signing in the wrong order
- Appointing inappropriate attorneys
- Contradictions in instructions and information
- Missing pages and missing information
- Using initials instead of the full name and not signing in the correct place</li>
- Using the wrong form
- Using Pencil or Tippex
- About life sustaining treatment
- Ignoring registration requirements
1. Certificate provider cannot be family
A certificate provider is someone who is impartial and who can confirm that you understand what you are doing and that nobody is forcing you to make the LPA.
So, you must choose a certificate provider who is impartial. i.e. they are not a family member. The need for impartiality is so the certificate provider can judge or consider the LPA fairly without allowing their own interest to influence their role. People who won’t be accepted are: family members, an attorney, and your employee.
You can check the list of who can and cannot be the certificate provider in OPG’s LP12 guidance (Part A10- Signature: certificate provider)
2. Signing in the wrong order
Firstly, it’s a criminal offence to make a false statement on an LPA form. So, you need to make sure that the form is signed in the correct order and don’t say in the application page that it has been signed before it has been.
A lot of LPA applications that the OPG receive are signed in the wrong order. Here are some guidelines from the OPG:
- the donor needs to capture their wishes first and then appoint the attorneys;
- then the certificate provider needs to certify that the donor can make the decision to create the LPA; – see Guide to mental capacity
- then the attorney’s agree that they will act;
- the applicant signs section 15 at the end.
- If you’ve used continuation sheets in section 1 – 9, these need to be signed and dated at the same time.
- Do not future date (dating the signature incorrectly so the signatures appear in the correct order).
3. Appointing inappropriate attorneys
Certain individuals, such as bankrupts or individuals who lack mental capacity themselves, may not be eligible to act as attorneys. It’s important to select eligible and trustworthy individuals who are over the age of 18 years old.
4. Contradictions in instructions and information
Providing conflicting information or making errors in details such as names, addresses, and dates can create confusion and hinder the processing of the LPA. Also, giving conflicting instructions on different pages. Some LPAs contain unlawful instructions, in this case the OPG has to consult with the Court of Protection to establish whether it is valid or not. This will significantly slow down the process.
5. Missing and mixed pages
There are two forms of LPA, 1. Health and Welfare and 2. Finance and Property. Very often these get done at the same time but, also very often, the pages can get mixed up during the process or left out. Check the bottom right of each form to see which type of form it is. Make sure that you check and get someone else to check that the correct pages are in the correct order.
If you send a cover letter with the application, make sure you send a cover letter for both LPAs separately.
6. Using initials instead of the full name and not signing in the correct place
The OPG often gets applications where people sign on the sticky labels or notes that solicitors provide for guidance, instead of signing in the designated signature box on the document itself. Solicitors and other professionals need to ensure that their clients sign directly on the documents and within the correct boxes. The signatures must be witnessed, and the witness(es) should write their full name and address, in addition to signing the document.
7. Using the wrong form
Another top 10 mistakes in the power of attorney applications is to make sure you are using the correct form. Sometimes people fill out the Health and Welfare LPA thinking that it will cover them for Finance and Property, but it won’t. So, check that you have filled in the correct form both when sending in the application and when it comes back.
8. Using Pencil or Tippex
You are better off starting a new form rather than making amendments but, if you do, make sure they are in ink and witnessed by the person who made the mistake. Do not use tippex or any other type of correction fluid or a pencil. The forms themselves must be filled out in black ink to make sure it can be clearly seen.
9. Health & Welfare life sustaining treatment (section 5)
You must choose either option A or option B, not both and make sure that the witness information is filled in correctly by the witness.
In this section you need to make sure that you are clear about what decisions you want your attorney to make.
10. Ignoring registration requirements
The completed LPA form must be registered with the Office of the Public Guardian (OPG) to become legally effective. Neglecting this step will mean the LPA is not valid when needed.
Further information
There is a very useful document on the .Gov website called Avoiding errors when completing a Lasting Power of Attorney form. This has some in-depth guidance on not making errors in the application.
You can also contact the Office of the Public Guardian by:
Email: customerservices@publicguardian.gov.uk
Telephone: 0300 456 0300.
