Could your Lasting Power of Attorney application get rejected?
According to the government, there are over seven million registered Lasting Power of Attorneys (LPAs) in existence in the UK. However, according to a freedom of information request made to the Ministry of Justice, more than 50,000 LPA applications were rejected in 2023-2024, and in the last five years a total of 162,023 applications have been rejected.
Why?
The answer unfortunately is because of avoidable mistakes.
First some important background and things to consider if you’re thinking of making an LPA application…
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document allowing an individual (“donor”) to appoint one or more people (“attorneys”) to make decisions on their behalf if they lose mental capacity or no longer wish to make decisions themselves.
There are two types of LPAs – Health and Welfare LPA and Property and Financial Affairs LPA:
- The Health and Welfare LPA allows decisions about medical treatment, care settings, and end-of-life preferences.
- The Property and Financial Affairs LPA covers managing bank accounts, paying bills, and handling property or investments.
For millions of people in the UK, accessing this legal process is incredibly important for their wellbeing, safety, and financial security. Providing them with valuable peace of mind that their personal and financial affairs will be dealt with effectively when they are no longer able to confidently make decisions for themselves.
Pros and Cons of an LPA
Let’s start with the Pros:
- Valuable peace of mind that a trusted proxy will act in the donor’s best interests when they are no longer able to do so for themselves.
- Reduced stress for friends and family who might otherwise face a lengthy and potentially upsetting legal process for decision-making rights.
- Multiple attorneys can be appointed to ensure the right decisions are made and sense checked. Additionally, attorneys can be given defined roles.
- LPAs are more affordable and expedient than having a deputy appointed by the Court of Protection if someone becomes incapacitated without an LPA in place.
- LPAs are registered with the Office of the Public Guardian ensuring the correct level of oversight is in place.
- Attorneys have a clear authority thereby reducing delays, stress, and suffering to the donor and their loved ones in urgent situations
Now for the cons:
- The cost of each LPA is £82. So, a total of £164 to register both a financial and property affairs LPA and a health and welfare LPA. If an LPA is rejected the donor must pay an additional £41 repeat application fee for each LPA.
- There have been many incidents of attorneys misusing their authority, especially in financial matters, despite the safeguards put in place by the legislation. This also hit the headlines recently in terms of potential misuse when it comes to the proposed changes to assisted dying laws.
- They can be quite complex. Mistakes are commonplace and they cannot easily be amended once registered.
- Disputes are also commonplace, which delay the registration process. This places a huge burden on donors as well as leaving them unprotected.
What is the current legal situation regarding LPAs?
The Power of Attorney Act received royal assent in 2023. It’s aim is to digitise and modernise the previously antiquated rules and processes, as well as implementing changes to make the process more secure and accessible.
Changes include improved safeguards to prevent abuse and fraud, including robust identity verification checks, and a revision that only donors can register an LPA with the Office of the Public Guardian (OPG). A new online application system to speed up application times and reduce errors, and finally an allowance giving a larger group of interested persons the power to object to the appointment of an attorney. Although this was considered by many to be somewhat of an own goal by the government by putting put a disproportionate burden on donors or attorneys rather than making the system easier and more accessible.
Unfortunately, despite digitisation efforts, significant delays remain – in fact the current waiting time is 8-10 weeks. Not great news when this crucial document can only be registered when the donor has mental capacity.
Additional criticism has been levelled at the OPG for not going far enough to protect elderly people from LPA fraud. Labour MP Fabian Hamilton has tabled a bill to end what he sees as abuse of system by unscrupulous individuals. The proposed Bill would place duties on banks to contact a GP before signing LPAs and make provisions about the powers of the OPG to investigate the actions of an attorney. A welcome measure in terms of protecting people against injustice, but a procedure that would also service to introduce additional delay to an already slow system. The Bill is listed for a second reading on 17th January 2025 – so we’ll report back on this issue then.
Top five common mistakes that can lead to an LPA application being rejected?
1. Missing information – this can be as simple as missing a signature or even a date. Both are required multiple times to make the document legally binding, but with so many pages to check through and so many signatures required omissions can and do happen.
2. Insufficient information – full names, dates of birth and addresses must be provided. Common mistakes are using initials, missing middle names, or providing incomplete address information.
3. Getting the order wrong – There is a clear order the form must be signed in: The donor (person appointing attorney(s), then the certificate provider, then the attorney(s). Then the person registering the LPA with the OPG must sign again, which is either the donor or the attorney. Failing to do this in the right order can lead to a rejection.
4. Incorrect witnesses – just like a will, an LPA must be signed and witnessed. Too often however the proposed attorney is used as the witness creating an immediate conflict of interest that causes the application to be rejected.
5. Contradictory requests – Where there is more than one attorney appointed, the donor can request for attorneys to act ‘jointly’, meaning they must agree on each decision, or ‘jointly and severally’ meaning attorneys can make decisions individually or together. However, if a donor includes instructions that contradict the decision making stated, the application will be rejected, e.g. if the donor appoints three attorneys to act ‘jointly and severally’ they cannot then also be instructed to make decisions by a majority vote.
How to avoid rejections?
The best way to avoid rejection and protect both yourself and your proposed attorneys is to seek appropriate legal advice.
It’s money well spent. Making a mistake is costly and incredibly time consuming at a time when speed is often of the essence.
Leverets, can provide assistance with applying for LPAs, including advising on instructions to include, assurances that attorneys will always act in best interest and in line with wishes, as well as a checking service to ensure mistakes are spotted and rectified ahead of applying.
