HCR Law Events

16 May 2019

Dangers of a wrongly executed Lasting Power of Attorney

Lasting Powers of Attorney (LPAs) give legal authority to attorneys to act on your behalf in a situation where you are unable (or unwilling) to deal with matters yourself. There are two different types – one deals with finance and the other deals with health and care. For the finance LPA, your attorney(s) can act for you both when you have capacity to make your own decisions, but ask for their assistance, and also if you have lost capacity.

There are strict requirements for the signing and witnessing of LPAs and the case discussed below highlights the need for extreme care.

The Office of the Public Guardian (OPG) list the most noted problems with applications sent in as:

  • applicants not signing the forms in the correct order;
  • missing signatures or dates;
  • missing pages; and
  • mixing pages up.

Mistakes can also be made in dates of birth being incorrect or missing, names being spelt incorrectly, addresses being spelt incorrectly, post codes being wrong, and the witness not being an appropriate person. This is quite apart from more subtle problems, such as those where the LPA is valid but unfortunately does not cover everything that is required.

Between 2010 and 2014, a Freedom of Information Request showed that 3.46% of LPAs submitted were rejected and 14.78% of them were classed as “imperfect”. This meant that errors had been made on the form which meant they could not be registered without further investigation.

The OPG pick up these points and contact the individuals concerned to clarify or correct the mistake. It may lead to needing to sign new LPAs – if the Donor is still capable of doing so. Unfortunately, where there has been a mistake on the form, it can cause a problem with financial institutions once the LPAs are registered and are being used.

A recent case – Office of the Public Guardian –v- PGO and Ors, re: BGO – shows the danger of executing LPAs incorrectly. BGO executed both types of LPA. Both of them were registered by the Office of the Public Guardian in 2016. Sometime later, one of the financial institutions noticed that BGO’s signature had been witnessed by one of the Attorneys. An Attorney cannot act as a witness to the Donor making the LPA (because of a conflict of interest risk), so the LPAs were invalid and cancelled. By this time, BGO lacked capacity which meant that new LPAs could not be made. The only option was to apply to the Court for a Deputyship Order.

A Deputyship Order is where someone has to apply to Court of Protection to show that they are the best placed person to make decisions regarding property and financial affairs on behalf of an individual who lost capacity and does not have an LPA (or its predecessor, the Enduring Power of Attorney). This process is long and expensive and full financial, family and health details have to be supplied to the Court. It involves notifying various individuals, which can cause problems if the individual does not have family, and it can mean that distant family now have knowledge of that individual’s personal and financial affairs, which may be contrary to the individual’s wishes had they had capacity. The process tends to be slow and expensive and in most cases the Court remains permanently involved, at extra cost each year.

The result of an error on the LPA, which was not picked up by the OPG on registration, was a great deal of extra work and expense for the family.

Although it is possible to do LPAs yourself, it is always best to get legal advice to check that your LPAs match your circumstances, are drafted correctly and are then signed correctly. Legal advice is especially valuable when considering your preferences and instructions. Solicitors can suggest extra paragraphs to include in this section to match your circumstances and advise you regarding wording to ensure that your wishes can be met.

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About the Author
Alexandra Francis, Associate (TEP)

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