WillsSigning a Lasting Power of Attorney – A Guide

In order for a Lasting Power of Attorney (LPA) to be valid, it must be signed and dated by the various parties to the LPA in a certain order. Any deviation from this order risks that the Office of the Public Guardian will request pages be resigned when the LPA is sent for registration or return of the LPA unregistered. This article will cover the signing process of an LPA in detail.

Step 1 – Life Sustaining Treatment (health and welfare only)

The donor of a health and welfare LPA needs to sign and date section 5 (page 6) first under either option A (giving the attorney’s authority) or option B (refusal of authority) dependent on their wishes. They should not sign both.

This needs to be witnessed by a witness who is over 18. The witness cannot be an attorney or replacement attorney.

Step 2 – Donor’s Signature

The donor must next sign and date section 9 (page 10). The donor’s signature must be witnessed by a witness who is over 18. The witness cannot be an attorney or replacement attorney.

At the same time as signing section 9, the donor must also sign and date any continuation sheet 1s (additional people) and any continuation sheet 2s (additional information). These do not need to be witnessed.

Step 3 – Certificate Provider’s Signature

Once the donor has signed, the certificate provider must then sign and date section 10 (page 11). They are signing this page to certify that when the donor signed section 9 that:

• the donor understood the purpose of this LPA and the scope of the authority conferred
• no fraud or undue pressure is being used to induce the donor to create the LPA
• there is nothing else which would prevent this LPA from being created

No witness is required.

Step 4 – Attorney Signatures

After the certificate provider has signed, each attorney and replacement attorney must sign their respective page of section 11.

Each attorney’s signature must be witnessed by a witness who is over 18. The witness must not be the donor. Attorneys can however witness each other’s signatures.

If a Trust Corporation has been appointed as an attorney of a property and financial affairs LPA, a continuation sheet 4 must be signed by authorised persons of the Trust Corporation.

Where there are multiple attorneys in the LPA, they can sign on different days, providing that they sign after the certificate provider has signed and before section 15 (page 20) is signed.

Step 5 – Application to Register

The final step is that the people applying to register the LPA must sign and date section 15 (page 20). This will be either the donor or the attorneys depending on the option chosen in section 12 (page 17).

If the donor is registering the LPA, only they will need to sign page 20.

If the attorneys are registering the LPA, who signs will depend on whether who they are appointed:

• If solely, the sole attorney will sign
• If jointly, all attorneys must sign
• If jointly and severally, the attorneys can decide whether all or only some of them apply to register the LPA. Whoever they decide will register the LPA must sign.

In all cases, no witness is required.

Alternative Signing Scenarios

There are times when the signing of the LPA may be slightly different due to the circumstances of the donor.

Where the donor is blind or illiterate, but can still sign, the signing situation is no different. The only exception is that the terms of the LPA, including the legal rights and responsibilities in section 8, would need to be read to the donor and the donor would need to be guided to sign in the correct places.

In cases where the donor cannot sign, but can still make a mark, the signing situation will be no different.

Where the donor cannot sign or make a mark, they will need to have someone sign on their behalf. The person signing on the donor’s behalf;

• must be over the age of 18,
• must only sign on the donors instruction, and
• cannot be a witness in the LPA.

In practice, it is advisable for a completely independent person to sign on the donor’s behalf.

The signing of the LPA will be varied as follows:

Step 1 – The person signing on the donor’s behalf will sign section 5 (page 6) instead of the donor. They must sign in their own name and not in the donor’s name. This only applies to a health and welfare LPA.

Step 2 – Section 9 (page 10) will be left blank. Instead, a continuation sheet 3 must be completed. This must be signed and dated by the person signing on the donor’s behalf. This signature must be witnessed by two witnesses. The witnesses must be over 18 and cannot be attorneys or replacement attorneys.

If applicable, the person signing on the donor’s behalf must also sign any continuation sheet 1s any continuation sheet 1s (additional people) and any continuation sheet 2s (additional information).

Step 3 – as above

Step 4 – as above

Step 5 – this must be completed by the attorneys and cannot be completed by the person signing on the donor’s behalf.

General Guidance

If possible, it is best to have the LPA signed on the same day by all parties. In practice this may not be possible, particularly if not all attorneys live close to the donor.

All dates in the LPA should be clear as possible. Where there are any difficulties in interpreting the date a party to the LPA signed, the OPG may require that pages be resigned. Common errors are 5s that look like 8s, 0s looking like 6s or 9s, and 7s that look like 9s.

Where a mistake is made in signing or dating the LPA, the mistake should not be overwritten, rubbed out or correction fluid used. A replacement page should be printed and signed instead.

Conclusion

Care should always be taken when signing an LPA to ensure the correct procedure is followed. If there are any defects, these should be rectified as soon as possible. Failure to do so may result in an invalid LPA, and if the donor has lost capacity it would be impossible to rectify that mistake.

 

If you have subscribed to our Quiz Membership 2024, please find this article’s quiz here. You must be signed into the partner area of our website to access this.

 

Photo by Amina Atar on Unsplash