Common mistakes to avoid when making a Lasting Power of Attorney

Imaginе this: a woman in her early sixties books a straightforward knee operation and then realises that if any problems occur while under anaesthetic, no one has the legal power to access her bank account, pay her mortgage or make decisions regarding her care. Or think about a family that is given a dementia diagnosis for one of their parents and finds, in their horror, that it is now too late to set up a lasting power of attorney since their relative no longer has the mental capacity to do so. Scenarios such as these are far more common than most people think, and they are completely preventable.

An LPA is the legal document which prevents such a crisis situation occurring, granting a reliable person—your attorney—the authority to act on your behalf when you are unable to look after your own affairs. At Buchanan & Co Solicitors, a family-owned firm providing services in Staveley, Chesterfield, Kiveton Park and Sheffield, we see the same avoidable errors cause applications to fail over and over again. This article outlines what an LPA does, the two types available, how the registration process works, and how to get it right the first time.

What a lasting power of attorney actually is, and why timing matters more than you think

A lasting power of attorney is a legal document established under the Mental Capacity Act 2005; the person who is granting the authority, that is, the donor, must have full mental capacity when the document is made and once that capacity is lost the opportunity to do so is closed for good. The only other option is to have a deputy appointed by the court, which is much more expensive, takes a great deal of time and provides families with considerably less control over the decisions involved. The period between deciding that you need an LPA and actually losing your mental capacity can be shorter than anyone anticipates, especially after a stroke, following a diagnosis of dementia or as a result of a serious accident.

An enduring power of attorney (EPA) is the version of the document that was in use before 2007. Even though EPAs were drawn up before October 2007 may still be valid and it is necessary to register them with the Office of the Public Guardian (OPG), all new documents have to be based on the LPA framework as required by the power of attorney UK rules. This is important if your parents or grandparents have some older papers stored in a drawer at home since the documents might be valid but will have to be verified.

The situations which make an LPA necessary are not distant possibilities; they involve making arrangements before a hospital visit that is already scheduled, looking after financial matters while living abroad for a time, helping a spouse who is dealing with complicated investments, or taking prompt action following a diagnosis of dementia or a stroke in the family. These are the kinds of situations our clients at Buchanan & Co Solicitors encounter regularly.

The two types of LPA: what each one covers and why you likely need both

There are two different last powers of attorney and registering one does not confer the authority needed for the other; they have separate purposes and as a result many people choose to register both in order to provide coverage for both their financial and medical matters.

An LPA regarding property and financial matters includes the management of bank and building society accounts, the payment of bills, investments, pensions, benefits, tax, and the purchase or sale of property. The donor has the option of arranging for the attorneys to begin acting as soon as the document is registered, even if their mental capacity is still unaffected, or of limiting their powers so that they only act after capacity has been lost. This LPA provides no authority in relation to healthcare decisions.

A licence to make decisions about health and welfare includes matters such as personal care, the daily routine, where you live, medical and dental treatment, the arrangements for care and social contact. It can only be used when the donor actually lacks the capacity to make that particular decision at that time. Special attention should be paid to one of the clauses: if you wish for your attorney to decide on life-sustaining treatment you must actively agree to this. If you do not, then your attorney has no power in this area.

The situation in practice is simple: an attorney who has only a financial last power of attorney cannot select a care home, and an attorney who has only a health and welfare last power of attorney cannot pay the fees to the care home. Neither of these documents allows this.

Choosing the right donor, attorney and certificate provider

The donor

The person giving the donation must be at least 18 years of age, have the necessary mental capacity when they sign the document, and have to be acting completely of their own free will. For the purposes of this statement, mental capacity means that the individual must understand what an LPA is, who the attorneys will be, what powers are being granted and what the consequences will be. It is an effective way of protecting against any challenge on the grounds of capacity or free will to have a solicitor meet the donor privately, since this enables an independent evaluation of both the donor’s capacity and the voluntariness at the time of signing.

The attorney

The decision about which attorney to appoint requires more consideration than most families are willing to give it. Although the OPG’s advice makes it clear that someone who is bankrupt or who is subject to a debt relief order cannot serve as an attorney, this is only the beginning of the criteria. You will need an individual who is financially sound, well organised, available and free from any conflicts of interest. It is not always appropriate to automatically choose the eldest child because of habit. You have the option of appointing attorneys who act jointly (in which case all of them must agree to any decision) or jointly and severally (in this case each of them can act on their own). Joint and several authority is more flexible when it comes to everyday matters, but joint authority provides a natural check on high-risk decisions such as the sale of property or large withdrawals.

The certificate provider

The role of the certificate provider is one that is frequently neglected but yet important. This person has to make sure that the donor has the mental capacity, understands the LPA, and is not being pressured into signing it. They must be at least 18 years of age and should be either someone who has known the donor on a personal basis for at least two years or a relevant professional, for example a doctor or a solicitor. They cannot be any of the following:

An attorney or replacement attorney named in the LPA; a close relative of the donor or of any attorney; anyone who stands to benefit financially from the LPA

The certificate provider must talk to the donor privately and without the presence of any attorneys before signing; when a professional certificate provider is used, for example the solicitor who is drawing up the LPA, much of the ambiguity in this procedure disappears and the risk of rejection on this basis is greatly reduced.

Common lasting power of attorney mistakes that cause delays and rejections

Signature and signing order errors

A large number of the rejections dealt with by the OPG are due to signature errors and a wrong signing order. Examples of such errors are the certificate provider signing before the donor, an attorney acting as witness being another attorney, dates being omitted, names appearing differently in various sections, or signing on a photocopy instead of the original document. The OPG may in some cases permit reapplication within three months at a reduced fee, but the delay can be stressful and may have real consequences if the LPA is needed urgently.

Certificate provider problems

A certificate provider who is a relative, has something to gain from the LPA, or fails to meet the eligibility criteria will result in the application being rejected. Likewise, incomplete sections of the certificate are a problem since the provider has to confirm all the necessary points, not just put a signature on a partially blank form. The risk of rejection is eliminated if you use a solicitor as your certificate provider, since this is completely allowed.

Other common errors

Beyond signatures, several other errors routinely derail lasting power of attorney applications:

Instructions that are vague or illegal and which go against the legal framework of the LPA or the manner in which lawyers have been appointed to act; an omission of the fee or incomplete evidence in the case of an application for a reduced fee, including the reliance on bank statements as proof of income. Names are written in an inconsistent manner, with initials or shortened forms used in some places and full names in others. Alterations have been made with the use of correction fluid, or amendments that have not been correctly initialled. The use of a outdated form or the complete omission of pages.

How Buchanan & Co Solicitors takes the guesswork out of the process

If your LPA is drawn up by a solicitor then the instructions and restrictions will be legally valid from the beginning, the certificate provider section will be filled in correctly, and the signing sequence will be carried out in the proper order. The most frequent reasons for delays and rejections are dealt with before the application is even submitted.

Buchanan & Co Solicitors rated ‘Excellent’ on Review Solicitors with 630+ client reviews, have been looking after estate-planning documents for local families for many years and this amount of experience makes a real difference when it comes to the details being important.

Client Review – Fantastic service from start to finish – very professional but with a informal personal touch….highly recommend

An LPA is usually not completed by itself; instead, many clients choose to have one drawn up together with a will, a deed of trust, or as part of a more comprehensive estate plan. Buchanan & Co Solicitors provide bundled packages which include the preparation of LPAs, the drafting of wills and wider estate planning all under one coordinated set of instructions. This avoids duplication, lowers the costs, and makes it less likely that the various documents will contradict one another.

The company also provides Blue Light and NHS discounts for all its legal services, such as the preparation and registration of an LPA, since those people who spend their working lives looking after others should have the same professional support when it comes to their own planning. If you live in or near Chesterfield, Staveley, Kiveton Park or Sheffield and would like a stress-free discussion about whether an LPA would be suitable for your circumstances, please contact the team.

A list of common questions concerning lasting powers of attorney.

How long does it take to register an LPA?

The OPG guidelines state that it currently takes 8 to 10 weeks to register an application with no errors, this period including the required four-week objection period. If errors are discovered or an objection is made, the process can take as long as 16 weeks or more. Since you can’t use the LPA until it has been fully registered, it is strongly advised that you apply well in advance of when you might need it.

Who is eligible to act as a certificate provider for an LPA?

In order to act as a certificate provider one has to be at least 18 years of age. The person must either have known the donor personally for at least two years or be a suitable professional, for example a doctor, a solicitor or a social worker. It is not permissible for the certificate provider to be the attorney named in the LPA, a close relative of the donor or of any attorney, or anyone who will gain from the document. It is a common and practical option for a solicitor to act as certificate provider since this combines professional independence with a good understanding of the LPA process.

May I draw up a last power of attorney if I already have a diminished capacity?

A lasting power of attorney can be drawn up only when you have the mental ability to understand the nature of the document, who the attorneys are, and what authority you are giving. Once you have lost this capacity, it then becomes impossible for you to make an LPA; in such a case, a family member would have to apply to the Court of Protection for a deputyship order. This procedure is more expensive, takes longer, and is less flexible.

Is it necessary for me to have both kinds of LPA?

The two kinds of last power of attorney relate to completely different areas: a property and financial affairs LPA does not give anyone the power to make decisions about your health or care, and a health and welfare LPA does not give anyone the authority over your finances. If you would like someone to act on your behalf in both areas then you will need to have both documents. Since each LPA costs £92, it is simple and economical to register them together.

The bottom line

A lasting power of attorney is not something that only elderly people need; it is a document that anyone can use if they want to remain in control of what occurs to them when their capacity is lost suddenly. The two types of document work in conjunction with each other, addressing different but equally important aspects of life, and there are well-defined rules involved in the registration process which have real consequences if they are not observed. It is just as important to select the right attorney with the appropriate safeguards included as it is to fill in the form correctly.

Starting by seeking professional advice greatly cuts down the chances of making the most frequent mistakes. The earlier you take action, the more options you will have. So if you’ve been delaying it, today is just as good a day as any to begin that discussion.