Six Mistakes to Avoid When Making a Lasting Power of Attorney (LPA)

Six Mistakes to Avoid When Making an LPA

As a former caseworker at the Office of the Public Guardian (OPG), who processed thousands of Lasting Powers of Attorney, I’ve seen countless mistakes. Some were minor; others required lengthy legal processes to resolve. In this blog, I discuss six of the most common mistakes people make when preparing a Lasting Power of Attorney (LPA), and the consequences that can follow:

  1. Signing and dating forms incorrectly.
  2. Correcting mistakes incorrectly.
  3. Using unsuitable witnesses.
  4. Choosing a family member as a Certificate Provider.
  5. Mixing Property & Financial Affairs and Health & Welfare pages.
  6. Writing contradictory or unlawful instructions.

1. Signing and Dating the Forms Incorrectly

Signing and dating the sections in the wrong order is one of the most common mistakes people make when completing an LPA. Considering the number of sections that must be signed, it is an easy mistake to make. Signing out of order does not necessarily invalidate your document, but your LPA must be signed and dated in a particular order. Although OPG can sometimes accept a corrected document, the safest option is to get it right the first time to avoid unnecessary delays. The Donor must sign first with their Witness, followed by the Certificate Provider, and then the Attorneys with their Witnesses. Lastly, the person applying to register the LPA must sign Section 15. If the signing order is incorrect, OPG may contact the named correspondent and ask for the relevant sections to be completed again. In certain cases, however, the mistake cannot be corrected and a new LPA is required.

2. Correcting Mistakes Incorrectly

When you make a mistake, your initial reaction may be to correct it immediately. Although OPG allows certain minor mistakes to be corrected, there are specific rules you must follow. You cannot correct a mistake with correction fluid, correction tape or stickers. In addition, you should never cross out incorrect information without initialling the correction. For example, if the Donor has entered the Attorney’s date of birth incorrectly, they should cross it out with a single line and write the correct date as close to the box as possible. The Donor should then write their initials next to the correction. Minor errors that may be corrected include dates of birth, names and addresses, provided that the correct procedure is followed.

3. Using Unsuitable Witnesses

Choosing an ineligible Witness, or completing the Witness sections incorrectly, can delay or even invalidate an LPA.

Witness mistakes that may delay an LPA:

  • An Attorney’s Witness signs or dates in the wrong box. 
  • The Witness provides an incomplete name or address. In addition to signing the LPA, the Witness must write their full name and address clearly.
  • An Attorney’s signature in Section 11 has not been witnessed. 
  • The Witness dates the LPA with a future date.
  • A correction made by the Witness has not been initialled.

Minor errors in a Witness’s details may sometimes be corrected.

Witness mistakes that may invalidate your LPA:

  • The Witness signs the space intended for the Donor’s signature.
  • An Attorney or Replacement Attorney witnesses the Donor’s signature.
  • The Donor’s signature in Section 9 is not properly witnessed. 
  • The Donor witnesses an Attorney’s or Replacement Attorney’s signature.
  • A Witness deliberately backdates the form.
  • The Witness is under 18.

4. Choosing a Family Member as a Certificate Provider

Choosing a family member as a Certificate Provider can prevent the LPA from being registered, and OPG may require a new LPA to be completed. A Certificate Provider’s role is to make sure that the Donor knows what they are signing and that they are not being pressured into making an LPA. It is not permissible to appoint family members, such as the Donor’s and the Attorneys’ immediate family, in-laws, step-relatives, spouses and civil partners. This also includes a boyfriend or a girlfriend of the Donor or one of the Attorneys (even if they don’t live at the same address). These rules are intended to safeguard the Donor, reduce conflicts of interest and protect the Certificate Provider’s independence. For more information on Certificate Providers, take a look at our blog: Certificate Provider for an LPA: Everything You Need to Know.

Six Mistakes to Avoid When Making a Lasting Power of Attorney - Signing LPA

5. Mixing Property & Financial Affairs and Health & Welfare Pages

It is easy to mix up pages from the two types of LPA, particularly when both documents are being completed at the same time. To make sure your LPA is registered smoothly, keep the two sets of pages separate. The two LPAs serve completely different purposes. In a Health & Welfare LPA, Section 5 records whether the Donor gives their Attorneys authority to give or refuse consent to life-sustaining treatment. In a Property & Financial Affairs LPA, Section 5 asks the Donor to choose whether their Attorneys can make decisions as soon as the LPA is registered (with the Donor’s permission) or only when the Donor has lost their mental capacity. If you mix up the pages, you might have to complete a new LPA and pay the registration fee again.

6. Writing Contradictory or Unlawful Instructions

During my years at the Office of the Public Guardian, I encountered many LPAs containing contradictory or unlawful instructions. An instruction might contradict how the Attorneys have been appointed to act or require them to do something the law does not permit. Such instructions can cause substantial delays. Where an instruction is unlawful or unworkable, OPG must refer the matter to the Court of Protection, which can result in a lengthy legal process. Depending on the issue, the Court of Protection can sever the problematic instruction or direct OPG not to register the LPA. Severance means that the problematic instruction is removed, and the LPA can be registered.

Unlawful or contradictory instructions can have severe consequences and cost you more than just time. For example, if an LPA is invalidated, the Donor may have to make a new LPA and pay a new fee. More seriously, the Donor may lose mental capacity before a new LPA can be made and registered. If you want to include specific instructions, seek legal advice before making an LPA. 

How to Avoid the Above Mistakes

To avoid delays with your LPA, take the time to read OPG’s official guidance. Speak with your Attorneys, any Replacement Attorneys and your Certificate Provider to ensure they are willing to be named in your LPA and understand what their roles will be.

For help making your LPA, contact Peach Planning at hello@peachplanning.co.uk or call us on 0345 116 2419.

Disclaimer: This blog provides general information and does not constitute legal advice. Peach Planning is an independent service and is not affiliated with or endorsed by the Office of the Public Guardian.