Lasting Power of Attorney issues – Part 2
Following on from the earlier blog the following are the next set of the most common errors made by people when drafting the LPAs, which means that the provision they have included is severed.
The basics of an LPA are: there is a donor (the person who needs help with their affairs), there are attorney/s and in some cases replacement attorneys and there is someone to serve notice on (to let them know that the LPA is being registered and can therefore be used). The person notified is entitled to challenge registration, but they rarely do. For LPAs, the wording to challenge registration has changed and with Enduring Powers of Attorney (EPAs), it was possible because of the character of the attorney, but now the reason for objecting to registration is that the attorney will perform their role in an inappropriate manner. This means that instead of challenging something current (and potentially past), the person being served notice has to be able to accurately predict future events (that the attorney will do something they shouldn’t) and as we all know, as does the Court of Protection, it is very hard to predict future actions with any certainty, to challenging registration is now harder.
The next person that is relevant to be discussed is the certificate provider, this is me, with my clients. It is my role to make sure that the donor has understood the document they are signing and that in my opinion there is no fraud or undue influence or any other reason that would invalidate the document.
The next tricky bit is who can be what and who can’t and the signing and witnessing. As certificate provider, I cannot be attorney (or replacement attorney), or person notified. The attorney/s (or replacement attorney/s) cannot be the person/s notified. I can witness anyone’s signature, but only the certificate provider and the person notified can be the witness to anyone’s signature, the attorney (or replacement attorney/s) cannot witness the signature of the donor and the donor cannot witness the signature of the attorney/s (or replacement attorney/s). If in doubt, get someone independent of a role to have another role or to witness, you can’t really go wrong then.
So the next problems the Court has are:
1. Where a replacement attorney is the only named person (this means there is no-one independent to notify and without a second certificate provider is invalid)
2. Allowing a replacement attorney to act in circumstances not prescribed by s13(6) of the Mental Capacity Act (which are the terminating events of: death, bankruptcy, loss of capacity, disclaimer or divorce from the donor)
3. Providing a replacement attorney to replace a replacement (this really requires a new LPA to take effect on the ending of an earlier one with the attorney/s & replacement/s)
4. Providing a succession where attorney have been appointed jointly
5. Requiring the attorney to obtain the consent of a third party
6. Ousting the jurisdiction of the Court
Some of these can be expressed as guidance and a wish, and if carefully drafted will not be severed, but when they are binding conditions, they will be severed, if expressed as guidance; however, they are not binding. It is not for example possible to replace a replacement, this does not prevent the expressing of the wish that one replacement attorney takes the lead in favour of an alternative replacement attorney if possible.
As discussed, once notice of intention to sever has been received the donor (if they retain capacity) can then decide to allow the severance or to create another LPA without the offending clause, but it will cost another registration fee (currently £130).
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