When preparing Lasting Powers of Attorney documentation if they have been prepared incorrectly or the procedure has not been complied with then the documentation may not be able to be registered. If the Lasting Power of Attorney cannot be registered and the person who has made the Lasting Power of Attorney has now lost capacity this would cause difficulty for the family as a Deputy Application would need to be made through the Court of Protection (which is what the Donor had wanted to avoid).
Common errors in completion of the Lasting Powers of Attorney are incorrect dates of birth, omitted names, addresses and incomplete sections or improperly witnessed signatures.
Errors in the procedure could be if there is only one certificate provider (i.e a person who assesses mental capacity of the donor when entering into the Lasting Power of Attorney) and the named people who are referred to in the Lasting Power of Attorney (these are the people who have to be given notice of the registration) have died . In this scenario as there are no named people, to give notice of registration to, then there should have been two certificate providers.
Mistakes or errors in Lasting Powers of Attorney documents are usually found soon after creation when the application is registered and that is why Donors are encouraged to register the Lasting Power of Attorney soon after creation as is possible. Postponing registration could cause various problems and delay.
With regard to Enduring Powers of Attorney, Enduring Powers of Attorney take effect and can be used before they are registered (unless there is any restriction) and only needs to be registered when the Donor is becoming or has lost mental capacity.
This therefore means that any errors in the Enduring Powers of Attorney would only come to light when registered and again the EPA may have to be rejected by the Court as certain defects could not be remedied. The Court will do all they can to assist in rectifying errors but this also would cause some delay. If an EPA cannot be registered then again it would be too late to enter into the new Lasting Power of Attorney and the family would have to apply to the Court of Protection to be a Deputy.
Many Enduring Powers of Attorney were made prior to the 1 October 2007 and can still be used and if you have an Enduring Power of Attorney that you wish to be reviewed then please do not hesitate to contact Edward Hands & Lewis Solicitors 13-14 Market Street Loughborough LE11 3EP T: 01509 212108 or email firstname.lastname@example.org
Emma Fuller is head of the private client team at EHL; our solicitors in Loughborough are experts in their fields and dedicated to quality client care. If you would like to find out more about our solicitors in Loughborough please contact us.Talk to our legal team
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