When do I handover control to my attorneys?
We've had several queries on on this. Some people/donors are concerned that as soon as the LPA is registered with the OPG, their control is handed over immediately to the attorneys. To set your mind at ease; this does not have to be the case.
While preparing your forms, we will ask you the specific question; "When do you want your attorneys to be able to make decisions on your behalf?” You get a choice here. Either you can decide that your attorneys can make decisions as soon as the LPA is registered OR you can decide that the attorneys can only begin to make decisions on your behalf if you have lost mental capacity. We'll record your response to this on the forms as you see fit.
If you select the option to only allow your attorney(s) to make decisions if you have lost mental capacity, then your LPA will still be registered with the OPG as normal, but attorneys can't make decisions for you until you've also lost mental capacity.
Signing and Witnessing
Once we have processed your LPA and sent it out to you, it’s important the documents are signed and witnessed correctly. Although the people fulfilling the various roles have already been added to the documents electronically, there is still a requirement for those people to sign (in the presence of witnesses) and have your witnesses correctly witness each signature.
Note: Assuming we’re processing LPAs for both Property and Finance & Health & Welfare, be aware that the signature and witness process is slightly different for each type of LPA (Health and Welfare requires one additional set of signatures). We would recommend that all parties get together, sign and witness at the same time. It makes things far simpler and less error prone.
First thing’s first: use a black pen and make sure that where a witness is required to write their address, they enter the address in block capitals.
Property and Finance
Donor signs and dates section 9 in the presence of their witness, who then also signs and dates (witness is also required to enter their address)
Certificate provider signs and dates section 10 (there is no witness required here)
Attorneys sign and date section 11 in the presence of their witness who then also signs and dates (witness is also required to enter their address)
The applicant signs and dates section 15 (there is no witness required here)
Health and Welfare
Donor signs and dates sections 5 and then 9 in the presence of their witness, who also signs and dates both sections (witness is also required to enter their address)
Certificate provider signs and dates section 10 (there is no witness required here)
Attorneys sign and date section 11 in the presence of their witness who then also signs and dates (witness is also required to enter their address)
The applicant signs and dates section 15 (there is no witness required here)
Note: If the LPAs are not signed and witnessed correctly, the Office of the Public Guardian (OPG) will not process the LPA. They will return the LPA to you directly, providing the detail as to what has been incorrectly signed. A new LPA would then need to be submitted and a new, although reduced, registration fee will be charged by the OPG. Therefore it’s important to get the signatures done correctly first time around. Common errors to avoid during the signature phase are: missing signatures or dates, missing witnesses, incorrect order of dates. However these errors can easily be avoided by simply following the above 4 steps for each document in order.
Roles and Responsibilities: Who is who and who does what?
Feedback from customers has confirmed what we already suspected: the names of some of these roles can be confusing and it’s not immediately who is who (and who does what) in the process of creating a LPA for either financial or health and wellbeing.
We’ll break it down below to try and make it clear who’s who in the process:
The ‘Donor’: this is the person the LPA is being created for, i.e. you. So called because you will be legally donating your power to someone to make decisions on your behalf.
The ‘Attorney’: this is the person (or perhaps multiple persons) who receive that power and who will potentially make decisions relating to your finances/health and welfare, should they be required to.
The ‘Certificate Provider’: this is a person who’s signing the LPA forms and confirming that the donor understands what they are signing/doing and that the donor has not been pressurised into signing. This person must have known the donor personally for at least two years and importantly the certificate provider cannot also be an attorney.
The ‘Witness’: a person who is physically present at the time of signature and who can witness the signatures of the donor and the attorney/attorneys. NB: The witness is not required to witness the certificate provider.
Finally we have the ‘Applicant’: this is the person who is applying for the LPA. This can be either the donor or the attorney(s), but not both.
Hopefully this makes the process more understandable. We’ll cover off the mechanics of getting the LPA forms signed in another blog post.