Invalid Lasting Power of Attorney

Trusts Discussion
1

We have a case where a client prepared a Lasting Power of Attorney appointing one of our partners as attorney, and one of our staff acted as a certificate provider. As the certificate provider was a lawyer from a different branch which was operating under a different name, the OPG has registered the LPA, despite the fact that the certificate provider is an employee of an attorney.

Does anybody know whether the LPA is fundamentally invalid, or whether it can be validated by our partner disclaiming his appointment as attorney please? My gut feeling is that it was just never valid and cannot be “saved”.

Many thanks,

David Harris
Wellers Law Group LLP

2

We had a similar case where a salaried partner was the attorney for her mother in law. Certificate provider was a legal exec. It was registered as partner used home address and proceeded but during correspondence about another matter the partner used her work email address and it was spotted.

Initially opt wanted to cancel but we argued

  1. Donor had lost capacity and LPA was in place as other family members had fallen out. Court was inclined to appoint partner as deputy anyway so what was the point.

  2. Also not an employee as the partner had no direct control of the legal execs role.

I am sure this will have been fact specific but the court allowed the attorney to continue.

Not sure if this directly answers what you should do with the power but this area is quite unclear. We now use a different firm as certificate provider whenever this situation arises and we reciprocate for them

3

My feeling is that it may be invalid, but suggest facts put to the OPG and guidance sought.

Of particular relevance may be whether the donor is capable of granting a replacement LPA.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

4

I agree Paul, the OPG seem keen on the idea of cancelling the LPAbut supporting a deputyship for the same parties.

Aside from the costs involved this can cause all sorts of problems never mind the additional reporting requirements.

To be fair the court was happy to discuss and we did come to an agreement in the end, although I am sure in other cases this might not be as easy!

5

This is helpful, thank you very much!

David Harris
Wellers Law Group LLP

6

A certificate provider cannot be a paid employee of the attorney/s. I have always either got, a good friend of the donor or another firm to be the certificate provider. Thinking practically, if the OPG has registered the LPA then i don’t think that the attorneys should face any problems using it. However, to cover yourself (just in case), i would do a new LPA. Of course, the firm will have to pay the OPG fee. Hope this helps
Ruksana
Hamilton Davies LLP