Common issues with LPAs and how to avoid them

There are two types of LPA:

• An LPA for property and financial affairs, which allows the attorney(s) to make decisions about bank accounts, money management and property owned by the donor.
• An LPA for health and welfare, which allows the attorney/s to make decisions about health care and medical treatment.

Once completed, the signed and witnessed LPA is sent to the Office of the Public Guardian (OPG) for registration. If the LPA has not been compiled correctly and mistakes are present, the OPG will reject it.

A Freedom of Information Request made by Quilter (the wealth manager and financial adviser) in 2023, found that almost 30,000 LPA applications were rejected by the OPG in FY 2022-23 due to mistakes. This will have involved a lot of wasted time and money!

In August 2023, the OPG released guidance on avoiding errors when completing LPA forms. We have summarised this guidance below.

The most common issues made when drafting LPAs

1. Signing the form in the wrong order

The form itself outlines the correct signing order which must be followed. The donor must sign the LPA first, then the certificate provider, then the attorneys, and thereafter, the person registering the LPA must sign again (either the attorney or the donor).

2. Missing information or providing incorrect details

If your LPA is missing information, it won’t be approved. Parties often forget to provide the date on which the donor, attorneys or certificate provider signed the LPAs, or sometimes signatures have not been witnessed.

Parties also submit LPAs without giving the full information required. For example, witnesses often cause an LPA to be rejected by not noting their full address, or by providing incorrect information. This is important as banks and other financial institutions may refuse to grant the attorney access to funds if there are spelling mistakes or discrepancies in the documentation. You therefore need to make sure you have given all the information requested, and that all the details are correct. 

3. Impartial certificate provider

Certificate providers are impartial people who confirm you understand what you are doing, and that nobody is forcing you to make the LPA. You must choose a certificate provider who is impartial. Examples of people that won’t be accepted are family members, an attorney or an employee of the donor.

4. Incorrect witnesses

Parties often use witnesses who are not suitable – as they are not “independent”. For example, an attorney cannot witness the signature of a donor because there is a conflict of interest in doing so. 

We often recommend that you choose someone entirely independent to witness, however the key requirement is that your witness is impartial. The purpose of requiring a party's signature be witnessed is to provide, if necessary, unbiased evidence of what was signed, by whom and when. The guidance does not state that a partner or a relative is not impartial, so this will not cause the form to be rejected (eg if they have the same surname). However, you must be comfortable that whoever you choose to act as witness is impartial, and generally we would recommend you find a different witness if possible.

5. Submitting the form in the wrong order or with missing pages

The LPA is a legal form so needs to be clearly printed; should match how it looks online and be in the correct order.

6. Contradicting or unworkable LPA requests

The donor might appoint attorneys to make decisions one way, but then include instructions that contradict this. For example, if you have three attorneys appointed in your LPA, and the LPA states attorneys should act “jointly and severally”, you cannot then include an instruction in the LPA to say that decisions are made by majority vote. As by acting jointly and severally, all of the Attorneys have equal power to act and make decisions. You must ensure that instructions comply with the other conditions of the LPA.

7. Making mistakes and making corrections to your LPA

You must not use any type of correction fluid or stickers when making corrections to your LPA as this will prevent the OPG from being able to register it. Instead, each mistake on an LPA form needs to be corrected and initialled by the person who made the correction.

Digital LPAs 

Last year, we covered in an article found here that a Powers of Attorney Bill will enable LPAs to be applied for digitally. This should mean that some of the common errors identified by the OPG could be avoided – such as amendments being initialled and printing forms in the wrong format or order. 

Although it might take some time for the new system to be implemented, we think this will be a positive change that will make the process quicker and easier, provided the relevant safeguards are in place to avoid misuse of the system.

How we can help

Evidently, completing LPA forms is not always straightforward and we would be very happy to support you through the process. As part of our advice, we would be able to explain the nature and effect of a LPA, prepare the LPA forms to reflect your wishes and then register the documents with the OPG. Please do get in touch if you would like to discuss this with us.