Avoiding Problems in Lasting Powers of Attorney

Setting up a Lasting Power of Attorney(LPA) involves making choices – but how do you avoid making the wrong choices?
An LPA could be rejected when it is submitted for registration if the choices you make are considered by the Office of the Public Guardian (OPG) to be inconsistent with the Mental Capacity Act 2005 (MCA 2005).

Avoiding Problems in Lasting Powers of Attorney

Restrictions and Guidance:
Lasting Powers of Attorney contain sections where the Donor (the person making the Lasting Power of Attorney (LPA)) can insert restrictions on the powers granted to the attorneys and/or guidance to help them in using their powers.
Not surprisingly, many people wish to include some restrictions or guidance in their LPAs. However, unless care is taken this can lead to difficulties.

How can problems arise?
There are many different types of problem that a donor can inadvertently create. Here are just some of them:
1.When choosing more than one attorney the LPA documents require the donor to make a choice between appointing the attorneys to act ‘jointly’ or ‘jointly and severally’.

Although many people understand that ‘jointly’ means the attorneys have to act together in everything whereas ‘jointly and severally’ means the attorneys can decide to act jointly or separately, difficulties can arise if the donor wishes the individual attorneys to have differing degrees of authority.

For example, if the donor appoints the attorneys to act jointly and severally but then attempts to make the attorneys act jointly in some situations by placing restrictions on them, unless the donor uses words to impose that restriction  that are clear and consistent then the restriction might be struck out by the OPG.

2.Difficulty can also arise if the donor tries to dictate the way in which the attorneys are to reach their decisions, such as insisting that one of them will have dominance in making decisions.

3. There can also be problems if the donor wishes to allow the attorneys to appoint substitutes or choose other additional attorneys.

Decisions that can never be authorised by the donor
There are some decisions or actions that the donor of a Lasting Power of Attorney can’t authorise. This is because they are considered to be so personal to the individual or because other laws govern those kinds of decisions; for example decisions about getting married or entering into a civil partnership, sexual relationships or divorce or about exercising voting rights.

What happens if an LPA contains inappropriate provisions?

If the donor has tried to exceed the boundaries of what is permitted by the MCA 2005 or has included internally inconsistent restrictions or guidance this will prevent the LPA from being registered and steps will have to be taken to obtain an order from the court to remove the wording that causes the problem.

For more information on avoiding problems with Lasting Powers of Attorney ask for our fact sheet here

Find out about our Lasting Power of Attorney services and attorneys can also get help with using their powers to make decisions for a donor by joining our on-line membership service, BE My Own Lawyer