The Office of the Public Guardian rejected nearly 22,000 applications for Lasting Power of Attorney (LPA) in England and Wales in the last 12 months to April, according to a Which? freedom of information request.
With coronavirus lockdown continuing to disrupt our everyday lives, those in need of help managing their financial affairs and health may be considering making an LPA, and will want to ensure they get the powerful legal document right.
Here, we look at what’s happening to applications for Powers of Attorney in England and Wales (rules are different in Scotland and Northern Ireland) and how to avoid the common mistakes so that even with social distancing your application can get through without unnecessary delay.
- Read the latest coronavirus news and advice from Which?
What is a Lasting Power of Attorney?
A Power of Attorney is a legal document where one person (the donor) gives another person (the attorney) the right to sign or act on their behalf.
A Lasting Power of Attorney (LPA) is the most common form of Power of Attorney. It’s an ongoing arrangement with no expiry date and continues after the donor has lost capacity and can no longer make their own decisions. There are two types of LPA:
- Property and financial affairs LPA: this gives your attorney the power to make decisions about your money and property, such as managing bank or building society accounts, paying bills, collecting a pension or benefits and if necessary, selling your home.
- Health and welfare LPA: this gives your attorney the power to make decisions about your daily routine (washing, dressing, eating), medical care, moving into a care home and life-sustaining medical treatment.
In England and Wales an LPA has to be registered with the government, through the Office of the Public Guardian (OPG).
Find out more: Power of Attorney explained
Total LPAs registered and rejected
According to figures provided by the Ministry of Justice about the OPG, the total number of LPAs being registered has almost doubled in five years.
In the year to April 2020, nearly 875,000 LPAs were registered but almost 22,000 (2.4% of all applications) were rejected.
Finance and property LPAs registered and rejected
The highest rate of rejection in the past year was for finance and property LPAs.
Over half a million of this type were applied for but over 12,900 were rejected – 2.6% of applications.
Health and welfare LPAs registered and rejected
The number of health and welfare LPAs being registered annually has more than doubled in the last five years to 390,988 in 2019-20 but over 8,700 (2.2%) were turned down last year.
Five mistakes to avoid to register an LPA successfully
The Ministry of Justice and OPG endeavours to safeguard people’s interests so some applications for LPAs, which bestow huge authority to the attorney, will fail.
But there are many other applications which do not make it through the process for avoidable reasons, costing the applicant’s time and money.
However, there are five common pitfalls stopping an LPA from being registered or working once it is needed. Here, we reveal what they are and how to avoid them.
1. Instructions and preferences
You can apply for an LPA yourself without using a solicitor. Either way, the same government form is used.
Most of the problems arise in the section on instructions and preferences where people try to restrict the power they are giving the attorney.
Even though the government issues guidance on how to do this in a document called LP12, people who have drafted their own can run into problems here.
Case study: Grandmother May and the power to make gifts
Cheshire born Grandmother May (who did not wish to give her full name) wanted to provide for her grandson’s education even were she to lose the capacity to do this.
In effect, she was giving the power of gifting to her attorneys but the Office of the Public Guardian felt this created a conflict of interests.
While an attorney should carry out the wishes of the donor (in this case the grandmother) even if they don’t agree with them, the attorney’s overriding duty is to act in the donor’s best interests. In this case, to safeguard the welfare of the donor and ensure she didn’t impoverish herself especially with the prospect of imminent care costs looming.
The application was referred to the Court of Protection which decided that this LPA could go ahead but it would not necessarily be the same in every case.
Attorneys must not be put in a position where they have to choose between the donor’s interests and wishes.
Usually, attorneys are not given the power to make gifts unless the Court orders them to do so.
2. Signing in the wrong order
There are five people or sets of people who must sign the application and they must do so in the right order. If the dates by their signatures reveal this was not done correctly, the application will be rejected.
These people are the donor, the certificate provider, the attorney(s), the replacement attorney(s) and lastly the person registering the application which could be the donor or the attorneys.
The certificate provider’s role is to confirm the donor has the mental capacity to understand what they are doing and who they are choosing. It should be someone who has known the donor well for over two years or a professional such as a solicitor or doctor.
3. Illegible information
The OPG can be quite particular, warns Laura Wynn, a solicitor at Which? Legal. Crossings out and unclear rewriting risk the form being rejected.
4. Missing information
Forms can be rejected if the names, addresses and dates of birth of the donor and attorneys are not all included in full.
If you don’t fill out a box because you are unsure, they could reject an application so it’s worth taking advice. For example, you may not know whether you want your attorneys to act jointly and separately or just jointly and you might want to consider what this means in practice in your circumstances.
5. Check names are correct
The OPG has no way of knowing if names have been misspelt.
Banks are likely to reject a financial LPA where the names do not match with ID, warns James Buchan, solicitor at Which? Legal, so accuracy in filling in the application is vital.
- Find out more: setting up Power of Attorney
How to make an application safely during COVID-19 lockdown
It is still possible to apply safely for a Power of Attorney during the coronavirus lockdown. There has been no change to the requirements for signing and witnessing but there are ways to do this whilst still complying with the government guidance:
- You can witness signatures outside or through a closed window.
- Witnesses must have a clear view of the blank signature and date box before they are signed.
- The donor’s witness can be anyone with mental capacity over 18 who is not an attorney or replacement attorney.
- The attorney’s witness can be anyone with mental capacity over 18 but must not be the donor.
- You cannot witness signatures over video calls.
- Find out more: how to make a will or POA during coronavirus
How long will an application take during the lockdown?
The government is warning that processing is likely to take longer than the usual eight weeks.
Staffing levels will be affected by the coronavirus and there is likely to be extra demand for LPAs.
The government was not making any official predictions of how many applications it was dealing with as a result of coronavirus ahead of releasing figures at the end of June.
It is asking people to be patient and advising that phone calls will take longer than usual to be answered.
Which? offers Lasting Power of Attorney services
Which? Wills can help you set up a Power of Attorney or Lasting Power of Attorney and ensure you avoid any mistakes that might slow it down or stop it from working when it is needed.