8 Most Common LPA Application Errors

The Office of the Public Guardian (OPG) recently announced delays in registering new Lasting Powers of Attorney (LPA) documents. The cause, the pandemic of course. Staff are now working from home etc etc etc. Given they receive and average of 67,000 LPA applications each month (3,100 daily), you’d do well to not make mistakes, as these equal longer delays and sometimes additional fees.

So, to help us all along, they have produced the eight most common errors they see and explained what should be done to avoid these.

8 Most Common LPA application Errors

1. Missing and Mixing Pages  

Issue: there are two LPA forms, one for property and finance and one for health and welfare. They are very similar and so can be easily mixed/confused.

Solution: it’s important to take the time to review your applications; check the numbering and make sure you have the correct pages for each form before you send them to the OPG.

2. Signing and Dating Application in the Wrong Order 

Issue: there is an order in which an application should be signed. This is not always followed.

Solution: do not future date and follow the strict signature order.  Firstly, the donor needs to capture their wishes and then appoint attorneys. Second, the certificate provider certifies the donor has the capacity to make the decision to create an LPA. Third, the attorney agrees to act. Finally, the person making the application signs section 15 (applicant signature).

3. Family Members Named as Certificate Provider 

Issue: a Certificate Provider’s role is to make a judgement that the donor has the necessary mental capacity when they signing their LPA. They cannot be a relative of anyone named in an application (donor, attorney or replacement attorney), even if their surname is different. The following is a comprehensive list of those excluded from acting as Certificate Provider for any LPA:

• an Attorney or replacement Attorney for that LPA.

• an Attorney or replacement Attorney in any other LPA or Enduring Power of Attorney the Donor made.

• a family member of the Donor or of their Attorneys’ families including wives, husbands, civil partners, in-laws and step-relatives.

• an unmarried partner, boyfriend or girlfriend of the Donor or of any of their Attorneys.

• a business partner of the Donor or their Attorneys’ business partners.

• an employee of the Donor or their Attorneys’ employees.

• an owner, manager, director or employee of a care home where the Donor lives or a family member of a person associated with the care home.

• anyone running or working for a trust corporation appointed as an Attorney in a Financial LPA.

Solution: a certificate provider can be someone who has known the Donor for at least two years before the signing date or anyone with the professional training and understanding and who believes they can make a judgment on the Donor’s capacity. However, do ensure they have a distinctly separate relationship from donors, attorneys and replacement attorneys. Note also that the signature of the donor, attorney(s) and replacement attorney(s) must be witnessed and the witness(es) must write their full name and address as well as signing. The Certificate Provider can also act as a witness.

4. Using Initials Instead of Full Names and Not Signing in Appropriate Boxes 

Issue: the OPG has let it be known they receive many applications where people have signed the sign here sticky labels rather than in the signature box itself. 

Solution: this one is down to the professional providing the LPA service. At the very least, they should ensure clients sign in the appropriate box before documents are sent for registration.

5. Pencil, Tippex and Photocopies 

Issue: if pencil or Tippex is used, the OPG cannot determine how (or whether) an LPA application has been amended, or who did it; thus, they will not register the document.

Solution: use ink (wet signature) and witness any amendments in the traditional way. Also note, photocopies cannot be accepted unless they are certified.

6. Bound Applications 

Issue: now, this is something I did not actually know. The OPG scan the individual pages of an application for their records. If the application is received bound in some way, they often cannot produce readable copies for their scanning system.

Solution: don’t use anything too strong to secure a document. Whatever you use should be easily removable and not cause damage.

7. Being Unclear in the Life Sustaining Treatment Section 

Issue: this is an important element of the application. If your decision is not clear, or has contradictory instructions, the OPG cannot process the application. 

Solution: ensure the significance of this section is clearly explained to you and that you fully understand it’s significance. It must also be signed before section 9 (donor signature).

8. Contradictions in Instructions and Appointment Types  

Issue: when the OPG receives an application containing what they consider unlawful instructions, they have a statutory duty to seek guidance from the Court of Protection. This is a lengthy process and so obviously slows or even negates the registration process. Cases of this type are mainly around the enforceability of instructions and preferences in respect of euthanasia and assisted suicide (both of which are not permitted within the United Kingdom) in health and care LPAs.

Solution: seek legal advice on any instruction or preference you want to include in your LPA to ensure it is lawful. Moreover, refer to LP12 Make and register your lasting power of attorney: a guide (web version) for assistance.

I hope this has proved useful.

CONTACT 40RTY

It is always important to review your circumstances as family life evolves and when cultural, political and tax legislation changes occur. Keep up to date with developments and seek expert advice from firms like 40RTY.

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