Avoiding mistakes in a Lasting Power of Attorney
It’s surprisingly easy to make mistakes in a Lasting Power of Attorney
Unfortunately it’s not so easy to put them right.
Here’s a quick guide to avoiding mistakes in a Lasting Power of Attorney (LPA).
1. Not treating the document seriously
Lasting Powers of Attorney documents are designed to look like forms but they’re not forms.
The trouble with forms is we don’t tend to treat them very seriously. We know that if we get a form wrong when filling it out we can easily re-do it. It’s not a major problem. Lasting Powers of Attorney are different. They are legal documents known as ‘deeds’. That means they’re legally binding on the parties named in the document and can be enforced by the court.
Because Lasting Powers of Attorney are legal documents any mistakes in them can’t easily be put right.
2. Using the wrong type of Lasting Power of Attorney
There are two types of LPA; one for property and financial affairs and another for health and welfare. Quite a lot of people get them mixed up and use the wrong type of LPA. For example, people sometimes use the health and welfare LPA, when they want to appoint attorneys to deal with their property and finances.
3. Using an out of date document
The design of Lasting Powers of Attorney changes from time-to-time. It’s important to use the style of document that’s current at the time when the document is signed. It’s not a problem if the design is no longer the current one by the time the LPA is sent for registration. Check that you’re using the latest version.
4. Signing the form in the wrong order
It is really important to get this right. If the LPA is signed in the wrong order, e.g. the attorneys sign before the Donor, the LPA will be rejected when it’s sent for registration.
5. Not choosing an option for life sustaining treatment
Mistakes in a Lasting Power of Attorney for Health and Welfare are often made in the section dealing with life sustaining treatment.
This section is vitally important. If you want your attorneys to be able to make decisions on your behalf about life sustaining treatment you must sign in Option A. If you fail to sign either Option A or Option B then by default your attorneys will not have the power to make decisions about life sustaining treatment.
6. Authorising unlawful decisions
You can’t authorise your attorney to do something that’s unlawful.
Telling your attorneys to make large gifts from your money, or to help you commit suicide or something similar are all things that are unlawful for an attorney to do. The Office of the Public Guardian will either refuse to register the LPA or refer it to the Court of Protection for the words to be ‘severed’ i.e. struck out from the document.
“Hidden mistakes in a Lasting Power of Attorney can be just as problematic”
Lots of mistakes made in Lasting Powers of Attorney are obvious. Some are simple such as missing out pages. Other mistakes can remain hidden for a long time.
These types of errors usually come about because there’s a lack of awareness of things the attorney might need to do. Situations might arise in the future you didn’t think of when making the LPA. The Lasting Power of Attorney documents refer to general authority but perhaps surprisingly ‘general authority’ isn’t always enough authority.
If you haven’t been sufficiently specific about what you want your attorneys to be able to do for you, they could be blocked.
That’s where getting professional support can be so useful when making a Lasting Power of Attorney. Solicitors who advise LPA attorneys regularly, are in a good position to anticipate situations your attorneys might encounter. You can then cover those situations by including appropriately worded instructions.
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