Here are some potential pitfalls to look out for when making a LPA.
It’s really important that a Lasting Power of Attorney is filled out correctly, as if it’s rejected or there’s aproblem, you may need to reapply, which can be an expensive process when you’re paying £82 each time. It cannot be amended once accepted.
Why might a LPA be rejected?
Form is signed out of order
A Lasting Power of Attorney needs to be signed and dated in a very specific order. If one person signs and dates before another and they shouldn’t have, the Office of the Public Guardian will spot the issue (because the dates will be out of order) and reject it.
Too long a gap between the different people signing
If one set of people sign the LPA and then there is a long gap before the next people sign it, the OPG may reject it. While there’s no specific required time frame in which to sign, they recommend you do it within a few days of each other.
Someone objected to the LPA
If you have chosen to include ‘people to be notified’ when filling out the LPA, they will have around three weeks in which to raise any concerns about the document. If they do, the LPA will be rejected.
Using invalid or incompatible restrictions and conditions
As part of your LPA, you can fill out preferences and instructions for your attorneys. However, if the instructions are incompatible with the way your attorneys can act (that is, jointly, severally, jointly and severally) then the whole LPA will be rejected. For example, if you have appointed your attorneys to act jointly and severally, this means that they can choose to act together or individually and they must all be free to act at any time. So if you have appointed your attorneys in this way, you cannot then contradict it by saying that they must all act together for particular transactions.
Making provisions for gifts that they don’t have authority for
Within the terms of a LPA, attorneys can make gifts to other family members on ‘customary occasions’ such as birthdays or weddings. However, they cannot make gifts in areas such as school fees, trust funds or interest free loans to family members. If the donor includes a provision which potentially authorises the attorneys to make gifts which are not allowed by section 12, it will be invalid.
Asking attorneys to act for someone other than you
You cannot put into your LPA that your attorneys need to act on behalf of someone else. They act only for you. For example, if you state in the LPA that the attorneys must ‘maintain the health and welfare needs of XXX’, that would invalidate the LPA.
In some cases, the Office of the Public Guardian will ask for the donor’s consent to severance. This basically means that they will tell the applicant that the donor can either accept that the invalid request is removed completely from the LPA or, they make a new LPA without that particular provision, or with a provision that is modified. Not surprisingly, not many people choose the latter as they’ll have to pay the registration fee again. Consenting to severance will speed up the application, and mean you or the attorney don’t have to go through all the usual formalities again.
LPAs can include instructions and preferences for pets, for example how you would like them looked after, but they wouldn’t be legally binding. So you can’t ensure that your pet is looked after in the way you want, but you can ask your attorneys to consider your wishes.
Issues with banking
If you have set up a Finance and Property LPA, you should be able to use it to manage the financial affairs of the person with dementia. However, some people have reported issues around getting access to things such as telephone and internet banking, with some banks following security requests and questions so closely to the letter, and with so little knowledge of what and why a LPA may have been put in place, that it makes it very difficult to then use it when needed. Our advice would be to ensure that you have all necessary ID and proof of address ready when you go into the bank, as well as the registered LPA documentation, to ensure you have all that you need.
Many banks are taking steps to become more dementia-aware, both in the way they handle customers with memory problems, and in their interpretation of banking rules when it comes to Lasting Power of Attorney, so hopefully this won’t be a problem for much longer.
Need help filling out Lasting Power of Attorney documents? Unforgettable can help! We’ve created an online questionnaire to help you fill out your LPA and cover off any issues related specifically to dementia and the challenges it can present. Click here for more information.