Some dos and don'ts for completing LPAs
Some dos and don'ts for completing LPAs

The following Private Client guidance note provides comprehensive and up to date legal information covering:

  • Some dos and don'ts for completing LPAs
  • Joint and several and joint appointments (for all decisions)
  • Joint and several (for some decisions) and joint (for other) appointments
  • Replacement attorneys
  • People to be notified
  • Delegation by attorneys to third parties
  • Delegation by attorneys to discretionary investment fund managers

Every month the Office of the Public Guardian (OPG) receives applications for registration of lasting powers of attorney (LPAs) where they have to 'sever' instructions and preferences that are invalid or incompatible with the LPA appointment. This slows down the registration process and can be avoided if some simple steps are followed.

Severance in the context of LPAs is the Court of Protection's word for its power to strike out invalid provisions in an LPA so that registration can be concluded. Invalid provisions are often found in the preferences and instructions section of the LPA form (formerly known as restrictions, conditions and guidance). Although the OPG may feel a provision is invalid only the Court of Protection can strike it out on the basis that it:

  1. would be ineffective as part of an LPA, or

  2. would prevent the instrument from operating as a valid LPA

Several cases concerning applications for severance of LPA provisions were heard in Re JG.

The court has no power to replace the severed provision. The consequence is that the wishes of the donor may be deemed to be invalid in whole or in part. There are however some pointers that can be gleaned from the decisions of the Court of Protection to enable a trouble free passage to registration.

Common mistakes include instructions telling attorneys to make gifts that do