Over 50 Most Common LPA Mistakes
The Office of Public Guardian (OPG) estimates that approximately 10,000 LPAs per month are completed incorrectly. Thousands more were found to have errors when they were attempted to be used. Many of these errors occur because people try to save money by doing it themselves or using cheap online forms as guides. Some even pay a premium to ask a solicitor to help, who then does not guide or validate the signing.
FAQs
Why did my LPA get rejected by the OPG?
Most LPAs are rejected because of missing pages, signatures in the wrong order, unclear instructions, or the use of pencil or correction fluid.
Can I fix an LPA error after submission?
Yes. The OPG may return the document for correction, but this causes a delay. In some cases, you may need to start again and incur an additional fee.
What ink should I use to complete an LPA?
Always use black or blue permanent ink. Using a pencil, highlighter, or correction fluid will cause the OPG to reject the application.
How long does it take to register an LPA if there are no mistakes?
The OPG usually takes around 20 weeks to register an LPA if there are no errors or objections. Mistakes can extend this significantly.
How can Fern Wills help me avoid these errors?
We carefully prepare and review your LPA before submission, ensuring it is signed in the correct order and fully compliant with OPG requirements.
1. Missing pages
It’s essential to take the time to review your applications to check the numbering and make sure you have the correct pages of the forms before you send them to OPG. Continuation pages and additional attorneys are often missed.
2. Mixing pages
When people make more than one LPA application – for example, if they take out a health and welfare LPA and property and finance LPA together or make an application alongside a partner – sometimes they unintentionally mix up the pages on the different forms. If submitting multiple LPA applications, Fern Wills and LPAs always keep each in a separate plastic wallet. The LPAs, when returned, will be the same pages.
3. Signing the application in the wrong order
Many LPA applications OPG receive are signed in the wrong order. If you’ve used continuation sheets (part of sections 1 - 9), they need to be signed and dated at the same time. Do not future date (i.e., date the signature incorrectly so that the signatures appear in the correct order). The donor needs to capture their wishes first and appoint attorneys. Then, the certificate provider must certify that the donor is capable of making the decision to create the LPA, and the attorney must agree to act accordingly. The applicant, either the donor or the attorney, signs Section 15 at the end of the document.
4. Family members as certificate providers
Ensure that those signing as certificate providers have distinctly separate relationships from donors, attorneys, and replacement attorneys. For example, a certificate provider cannot be the son or daughter of anyone involved, even if the name is different. OPG can conduct checks to determine a possible relative. It’s also vital that full names are used. If they require a new section 10, it must be the same person as before.
5. Not signing in the appropriate boxes
In many applications, people have signed the sticky labels or notes that have been provided for guidance rather than in the signature box itself. Some cut-price providers fail to provide enough guidance to ensure that their clients sign the documents themselves and within the appropriate boxes.
6. Pencil & Ink
If you use a pencil, OPG can’t tell how (or whether) an LPA application has been amended or who did it. LPA applications with a pencil will not be registered. Black ink is preferred because it is easier to read by Optical Character Recognition (OCR) scanners used to read documents; however, blue ink is also accepted if it is legible.
7. Bound applications & Staples
Once OPG receives an LPA application, it scans the pages individually for its records. If an application is bound, it needs to be removed. If it can’t, it cannot provide clear, readable copies for the scanning system. Binding can be done once the application is returned. Don’t use staples; they can damage the document when OPG removes them to scan the pages.
8. Being unclear in the life-sustaining treatment section
This isn’t just a tick box on the health and welfare form. You need to specify what decisions your attorney can make. If this isn’t clear or if there are contradictory instructions, they cannot process the application. The correct box must be ticked and signed before the following sections.
9. Unlawful instructions
There are many legal cases on what is an unlawful instruction; the layperson (DIY or cheap form) is unlikely to know all these; therefore, you are advised to seek legal advice on any instructions you want to include in your LPA to ensure it is lawful. If an instruction is unlawful, the OPG has a statutory duty to seek guidance from the Court of Protection. This won’t always invalidate your LPA, but it will slow down the registration process. An example of an illegal request would be something that implies euthanasia or assisted dying.
10. Correction Fluid
If you use correction fluid (Tippex), OPG can’t tell how (or whether) an LPA application has been amended or who did it. LPA applications with these amendments will not be registered.
11. Photocopies
Photocopies will not be accepted unless they are certified as legally valid.
12. Not including Wills or LPAs in instructions
Attorneys must have access to Wills towards the end of life. For health and welfare, they may need to be aware of organ donation preferences or other instructions outlined in a letter of wishes. When managing an estate related to property and finance, it's possible that something may be gifted or sold, which could later be donated to a beneficiary in a Will or held in trust. In such cases, the attorney may not have had the authority to sell those items.
Professionally stored Wills and LPAs are not released to an attorney without a medical assessment (GP or £350-3750 professional) proving the lost capacity or a signed request from the Donor themselves. This can be avoided by including a specific instruction to the LPAs.
13. Missing information
Your LPA will not be approved if it lacks information, including the date, and it will not be registered if it is missing signatures or details that make it legally invalid.
14. Incorrect witnesses
The document must be signed and witnessed, but parties often use witnesses who aren't authorised to be used. For example, an attorney can't witness a donor's signature because there is a conflict of interest in doing so.
15. Not providing titles, full names, addresses and date of birth
You’ll need to provide your full name, including your middle name, rather than just your initial and surname. You’ll also have to use complete addresses and dates of birth. The signature(s) must be witnessed. The witness(s) must write their full name and address and sign it.
16. Contradicting requests
A standard error occurs in appointment types, such as incorrectly appointing joint and several attorneys. The donor might appoint attorneys to make decisions one way or another, but then include instructions contradicting this. For example, if you have three attorneys appointed in your LPA, and the LPA says attorneys should act ‘jointly and severally’, you can't then include an instruction in the LPA to say that decisions are made by majority vote, as by acting jointly and severally, all of the Attorneys have equal power to act and make decisions.
17. Contradicting another document
A simple stroke of a pen on the P&F LPA can have consequences for a Will. A seemingly innocent statement on an H&W LPA can interfere with an advanced decision. Both LPAs have sections where the untrained or unobservant could create a cascade of unintended consequences that may be expensive, difficult, stressful or unlawful to fix.
18. Writing outside of the boxes
It does not matter whether you use a tick or a cross as long as it is clear what your intent was and it is within the confines of the boxes. Fern Wills uses the latest SWW-approved software to check and write your answers legibly within each box. It also clearly strikes through sections that are not required, making your intent clear.
19. Not completing section 5 of H&W clearly
It is common for people to miss a section if they are unsure of its meaning or of their own answer. The LPA will be considered invalid if it is not completed in full.
20. Incorrectly amending mistakes before registration
Mistakes found before the LPA is signed can be corrected. A cross must be put through the mistake, with the correction clearly next to it. The relevant people must sign and date the correction. Any corrections after the donor has signed the document make the LPA invalid. If you attempt to complete the documents online and notice a mistake after printing, you must restart the process. This is because you accepted that the previous copy was the final version.
21. Amending a new address or other details.
Many customers who lack ongoing support for their LPAs often make mistakes after registration. If you change your address, name, or other significant details, the OPG can make the necessary amendments for you if you provide the required key information and evidence. You must notify OPG if you or your attorney changes your name or address. For the name, they must provide a copy of the marriage certificate or deed poll that shows the new name. For the address, supporting documents are not required.
22. Mistakes amending erros errors after registration
If you amend the LPA yourself after registration, you will invalidate the LPA. This would mean a new LPA has to be made, or if capacity is lost, the lengthy and expensive process of Deputyship must commence.
23. Not paying promptly
Many of us have put off writing an LPA for many years, or even had a recent scare that prompted us into action. Customers who DIY or use cheap online services often fail at the last hurdle. They usually leave the LPA in a drawer to be posted or registered later. Or they send it for registration and do not pay promptly. This will result in the LPA being ineffective, or, if not paid, it will be returned by the OPG.
24. Careful with gifts
Instructions about gifts often cause problems with property & financial affairs. This is because there are strict limits on the size and kind of gifts that attorneys can give on the donor's behalf. Attorneys can only give gifts:1) on customary occasions 2) to previously patronised charities, 3) reasonable in proportion to previous gifts 4) taking into account the overall amount that the donor has.They can not give gifts of:5) gifts intended to reduce inheritance tax6) Creating or contributing to trust funds7) Paying school fees for children other than the immediate children8) making interest-free loans9) paying maintenance for a family member other than a spouse or childrenAn application to the Court of Protection can consider the above gifts.
25. When can attorneys make decisions
Most enquiries start with requesting the Property & Finance LPA to begin only when the Donor loses capacity. This common mistake can cause intense distress for the family and, at best, be a considerable inconvenience. This can render your LPA significantly less helpful. Your attorneys might be asked to prove you do not have the mental capacity each time they try to use the LPA. People often lose capacity like the flick of a switch. It is a gradual process. Getting your loved ones to understand or admit they are at that stage can be very distressing for all concerned. There are many other times when capacity is there, but the "Donor" could very much need some help.
26. Instruction on how attorneys act together
Most enquiries begin with a request for the attorneys to work together or jointly. In certain circumstances, this can render the LPA difficult to use, unworkable, or invalid in cases of insufficient attorneys. If an attorney who has to work jointly passes away, it is as though all attorneys have died, and without a very carefully drafted clause, the LPA becomes invalid.
27. Insufficient attorneys
By having insufficient or no substitute attorneys, the LPA can become unworkable if one attorney is unable or unwilling to act. Most enquiries begin with a request for the attorneys to work together or jointly. In certain circumstances, this can render the LPA difficult to use, unworkable, or, in the case of insufficient attorneys, invalid.
28. Too many attorneys
Too many attorneys without clear direction can lead to family squabbles or analysis paralysis, resulting in delayed decisions.
29. The wrong attorneys
Often, Donors ask to have all their children as attorneys. Not to be helpful, but out of a sense of loyalty, I would like to include them. This can lead to stress for attorneys who struggle with the duties, lack sufficient time, or live a considerable distance away from the court. It is always better to have only the attorneys you want and who are willing and able to help. There is always the option of having them as a replacement/ substitute attorney or asking Fern Wills to have a conversation with them to explain the duties and obligations.
30. Too personalised or generic
If the LPA is too prescriptive, it can be challenging to understand, and the risk of family tension increases, as well as errors being found at registration. If left almost blank and too generic, it may not accurately reflect the donor's personal wishes. After consultation, having a supporting Statement of Wishes and a professionally drafted LPA can avoid many of these issues. It can also then be written with anticipated future needs regarding digital assets.
31. Procrastination
Donors often initiate the process, procrastinate, and prolong it. Each month that passes increases the risk that it may be too late.
32. Delayed Registration
You do not have to register immediately, but it’s a good idea in case you’ve made any mistakes. If you delay until after the donor loses mental capacity, it will be impossible to fix any errors. This could render the entire LPA invalid, making it impossible to register or use.
33. Continuation sheets
Continuation sheets are often missed.
34. Continuation sheets a)
They are often signed after Section 15 or not at all. They must be signed before section 9.
35. Continuation sheets b)
The boxes for the continuation sheet often do not have the correct category marked for additional people.
35. Continuation sheets c)
Continuation sheet 2: Additional information often does not specify how replacement attorneys should act, and the default joint provision can render the LPA invalid if one replacement attorney is unable to act.
36. Discretionary Investment Management
Many people avoid using Discretionary Investment Managers (DIMs) because they do not fully understand how they work. Some of the terminology can be alarming, such as funds being held in the name of the Discretionary Fund Manager (DFM) or the DFM making decisions without consulting the client beforehand. It is essential to carefully consider all options, as avoiding this type of investment can result in limitations on investment opportunities for income or pension or even lead to accounts being frozen or cancelled. Fern Wills & LPAs will provide a clear explanation of the best options for you and, of course, be willing to consult with your IFA or recommend one for a second opinion at no additional cost.
37. Mistakes in preferences & instructions
They may sometimes misunderstand the distinction between an instruction and a preference, and therefore use the incorrect language, which can render an LPA invalid. Others confuse the LPA with a Will and ask for things that only apply in a Will.
38. Confusing P&F with H&W LPAs
Donors write instructions regarding residential care in the Property & Finance (P&F) LPA rather than the Health & Welfare (H&W) or financial request in the H&W.
39. Not informing institutions - Acting too late
The Powers of Attorney are only helpful when the relevant institutions are notified of their existence. When the Registered LPA is received, banks, councils, accountants, financial advisors, and other relevant parties should be notified of the registered LPA.
40. Making decisions - acting too early
Bank accounts, cards and chequebooks are the property of the issuing bank. An attorney using these before the bank has acknowledged and accepted a registered LPA could be committing a criminal offence under the Computer Misuse Act sections 1 & 2.
41. Not keeping records
Professional LPA drafters keep records of the interview questions between themselves and the Donor. These records can be used as evidence to support the validity of a Power of Attorney if it is challenged. DIY, charity, or cheap online applications rarely have this support. Therefore, successfully defending a challenge could cost several times the price of drafting professional help in the first instance. Losing a defence could cost thousands, plus extreme stress for all involved.
Bank statements are a source of record, both before and after attorneys act on behalf of the donor. Clear records of decisions and transactions should be kept from the moment the LPA is drafted until approximately six years after the donor's death.
Fern Wills & LPAs have produced an Attorney spending Log to assist all clients.
42. Not sending a copy of the Advance Decision
An advance decision to refuse treatment is a legally binding written statement. It allows someone to specify what medical treatment they do not want to receive in certain situations in the future. It’s sometimes called a ‘living will’ or an Advanced Directive. The donor can have an advance decision and an LPA.
If the donor makes an LPA after making an advance decision
Whoever the donor has chosen to make decisions about life-sustaining treatment (either their attorneys or doctors) might override what is written in the advance decision. When making decisions, the attorneys or doctors should consider any preferences and follow any instructions the donor put in their LPA. The donor may want to get legal advice, particularly if their advance decision and their LPA say very different things. NHS Choices has more information about advance decisions (opens in new tab). There's more information about life-sustaining treatment, advance decisions, and how health professionals must respond to someone's written wishes in Chapter 9 of the Mental Capacity Act 2005 Code of Practice (opens in new tab).
43. The paper & cover quality
Standard paper typically has a thickness of 80 gsm and is of questionable quality. When the OPG registers documents, it uses a perforation machine. This process effectively punches and staples the pages together, which can lead to rips and tears, commonly referred to by professionals as "LPA tears & tears." In contrast, Fern Wills & LPAs use high-quality, single-sided 120 gsm paper to enhance the durability of LPAs and protect them from accidental wear and tear. Additionally, each LPA is provided with a plastic protector for added safeguarding.
44. Separating the pages
Related to number 41, there is a technique involving rolling and peeling that experienced drafters use to decrease the likelihood of ripping the LPA.
45. Professional Storage
Unfortunately, very few Powers of Attorney are stored in a professional manner, which increases the risk of them being lost, stolen, damaged, or spoiled by stains or markings. Any of these issues could render them useless. At Fern Wills & LPAs, we offer first-class, insured, and secure storage for these critical documents.
46. Self-certified copies a)
Very few donors are aware of how to obtain certified copies, leaving them vulnerable to dealing with the Office of Public Guardian (OPG) themselves, or facing potential 12-week delays and fees to obtain another copy, or to go without. Even then, the OPG only provides one copy at a time; therefore, only with written confirmation that the original is permanently and irrevocably lost or damaged beyond use will they allow you to buy another.
47. Self-certified copies b)
Those who do have copies made often make the mistake of using only one statement, rather than the required two.
48. Self-certified copies c)
Some even have them certified by someone who is not one of the only three classes of people who can legally certify a copy.
49. Self-certified copies d)
Many don't realise that they can have a self-certified copy per attorney and the donor, thereby increasing security and convenience for all.
50. Not professionally checking the registered document
Occasionally, the Office of the Public Guardian (OPG) makes mistakes, which is understandable given the thousands of documents it processes each week. Recently, Fern Wills & LPAs had to return a Lasting Power of Attorney (LPA) to the OPG because an incorrect stamp was used on one of the pages, rendering the instructions page invalid. We included a cover letter with the returned document to explain the situation, and the OPG provided a revised stamp and apology letter, thus maintaining the validity of the LPA.
51. Not having the ongoing support of a professional to answer questions.
Many donors or attorneys have either no guidance or, worse, too much "Google" guidance that is misleading, confusing, opinion-based, or regarding U.S. laws, rather than those of England & Wales.
52. Not cancelling and returning previous LPAs.
Out-of-date, invalid, or damaged LPAs must be cancelled and returned to the OPG using the correct method and terminology. Otherwise, the new copy will be either rejected or itself become invalid.
53. Conflicts with Letters Of Wishes.
Letters of wishes can be valuable companion documents for Powers of Attorney. When crafted well, they provide guidance and peace of mind. If not executed correctly, they can lead to ambiguity and conflict.
54. Not using Fern Wills & LPAs
OK, a bonus one and a bit of cheeky self-promotion. Many people tell me they can handle the paperwork themselves, and they wonder why they would use a professional when they can save money.
To reduce the stress and make sure it actually gets done!
You could probably have a go at fixing a gas leak, rewiring some electrics, servicing the brakes on your car, or diagnosing a concussion. I could probably have a good go at your job, but I am sure you would do it best. It is better to have the peace of mind that comes with being among the 100% of Fern Wills clients who have their LPAs approved, rather than risk being one of the 10,000 a month who "cheaped out" and failed. Errors can cost thousands and cause extreme stress.
Do it right because you're doing it for them.
