A power of attorney is a legal document giving an individual with ‘mental capacity’ the power to nominate another person to make decisions on their behalf should they be unable to do so in the future or if they no longer want to make their own decisions. In this article, Grace Murray draws on the experience of our pro bono Legal Service team to raise awareness of common mistakes in applications for Lasting Powers of Attorney and how to avoid them.

Powers of attorney can be helpful if you have been in an accident and find yourself in hospital, as they enable you to choose an ‘attorney’ who can take care of your money or liaise with your banks while you focus on recovering from your injuries.

Lasting Power of Attorneys (“LPA”) have to be registered with the Office of the Public Guardian (“OPG”), a government body that approves or declines applications and checks for fraud and abuse before the LPA can be used. However, data obtained by a freedom of information request showed that in 2023-24, 50,918 LPA applications were rejected by the OPG.

If the OPG rejects the LPA application, often for mistakes that could easily have been rectified before sending, delays can result. It takes about 15 weeks to register an LPA, during which time your attorney cannot use the power of attorney to do things for you.

Each application to register an LPA costs £82. If your LPA is rejected, you will have to complete a new application and pay another fee, perhaps the full £82.

Order of signing

The most common error we see when reviewing Lasting Powers of Attorney is that the forms have been signed in the wrong order.

The correct order of signing is crucial and should be as follows:

1. As the donor, you must sign and date the LPA first.
2. Then, the certificate provider should sign. The certified provider must be someone who is not a relative but has known you for at least two years or a professional such as a registered healthcare professional or solicitor who can confirm that you are acting of your own free will and understand the legal implications of signing the LPA.
3. Then, all attorneys and replacement attorneys must sign the LPA.

Lastly, the application pages confirming everything has been signed are signed by you or the attorneys acting for you and who will send the application to the OPG.

Witnessing the signatures

The signatures must also be witnessed in person at the time that the forms are signed. The witness for both you as the donor and attorneys must be over 18.

A named attorney or replacement cannot witness your signature. If you appoint more than one attorney, the attorneys can witness each other’s signature but not yours.

Make sure you include the witness’s name, as if these are missed, the application won’t be valid.

Handwriting, handwriting, handwriting

If the OPG cannot understand what you have written, it is more than likely that your application for an LPA will be delayed or rejected.

Therefore, if you are completing the form by hand, legible handwriting is vital.

An application for an LPA can be made online here: Make a LPA. Doing this will avoid any issues with handwriting.

Please note, the OPG requires the forms to be completed in black ink.

Correcting mistakes

Misspelling names or inputting wrong information, such as email addresses and dates of birth, is more common than you might expect. It’s always worth double-checking the application.

If you make a written mistake on your LPA application form, you can correct it if you spot it before submitting it to the OPG. You can do this by ensuring that the person who made the mistake puts a line through it, corrects it clearly (with black ink and neat handwriting) and puts their initials next to the correction.

Do not use correction fluid; the OPG will reject any applications that uses this.

Missing a section

The application forms need to be completed in full. If a section is optional, it is clearly marked; every other section must be completed.

If you do not fully understand a particular section of the application, the OPG has online guidance to help you here: Make and register your LPA: a guide. Don’t just leave it blank.

Conflicting instructions

If you wish to provide instructions to your attorneys, there is a section that allows you to do so. However, you should ensure the instructions are clear and do not contradict one another.

For example, if you appoint your attorneys to act jointly and severally, you cannot say in the instructions section that they must make all decisions together.

It may also sound obvious, but you can’t ask your attorneys to do anything unlawful. Your attorneys also cannot change your will.

Summary

Many common mistakes can be corrected if spotted before the application is sent to the OPG, which can prevent excess delays and unnecessary expense.