We are having an ongoing but ultimately unfruitful exchange with the OPG about an LPA which they have rejected, and I wonder whether there is any point taking it further.
The problem is that if you look very closely, you can see that one of the digits of the date when the donor signed the LPA has been altered, and it has not been initialled. This was not spotted by us before submitting the LPA for registration, because the alteration is barely noticeable, but that is not the issue in point.
The actual date of signature was 28/09/2023. It looks as though the “8” of “28” was originally written as a “9” or possibly a “0”, and then changed to an “8”. There is no dispute about the other figures, so it is clear that the date of signature was a date towards the end of September, and in fact it was the 28th. In any other document it would simply be accepted on face value.
The certificate provider and the attorneys all completed the LPA on various dates in October, so definitely after the date when the donor signed the deed, and in the correct order.
It is my view that this LPA is valid under the terms of the legislation, because it complies with the requirements as to the order of signature. But the OPG has rejected it and all my arguments to that effect. I have asked them to back up their decision with the legislation, to which they have responded that they can’t do that, but that the decision is in accordance with their own guidance. One question, therefore, is to what extent does that guidance have any legal force?
Fortunately, the donor still has capacity and can complete another LPA, but we will have to pay another fee, and I feel that the OPG is simply wrong in this instance. This is therefore to some extent a point of principle rather than a practical issue, but I would be interested to hear views from anyone else as to which of us is right, and whether it is a principle which is worth pursuing.
Diana, you are saying that the LPA was dated 28/09/2023 but we haven’t reached September yet! I assume that the month was earlier. As regards your question, whilst I sympathise with you, I’m afraid that once the OPG takes a view like that there is not much that you can do other than have a new LPA made. One thing that irritated me recently was when I witnessed the donor’s signatures in his health and welfare LPA. Unfortunately, I omitted to put the date of signing in section 5 - life-sustaining treatment. The rest of the document was correctly completed. However they were not prepared to allow me insert the date and said a new LPA had to be made, admittedly with only 50% of the fee being payable. Rather than argue, since after all, it was my fault, I arranged for the new LPA to be made, but I still can’t understand why this was necessary.
Sorry, the LPA in question was completed in September/October 2022. We have been arguing with the OPG since February, and it took them 4 months to reply to our initial complaint…
Unfortunately, common sense is not utilised at the OPG and whilst their complaints procedure is pretty quick once picked up, as Patrick and Karl say, sometimes it is quicker to relent and concede to their opinion. Frustrating as it is.
I’ve had the same experience sadly and like Kamlesh there is no common sense exercised. It is the inconsistency which I find frustrating. I’ve had similar circumstances where there has been an alteration to the date, sometimes it is rejected and others it isn’t!
The only “win” I had was where 3 out of 4 LPA’s were registered and a 4th was rejected on the basis on the attorney’s address (which was in China). The OPG stated that it was incomplete however when I explained that the other 3 identical submissions had proceeded without any difficulty they conceded. Took a good 6 months though!
The OPG can be a law unto themselves. Working in private practice with much more finite resources, these battles are just not affordable to play out. I agree with Diana’s analysis of the legal and common sense position, but of course it is not my gift to give. Be a sheep and follow the orders… one day perhaps a “society of lawyers” may actually help in these situations?
I had a similar issue recently …although in this case the attorney and certificate provider all signed the same day as the donor with the certificate provider acting as witness to the donor . The donor had also made an alteration barely visible to a digit of the date of his signature and hadn’t initialled it on a H&W LPA and signed the life sustaining section the same day too in front of the same witness so it was perfectly clear when it was signed. The attorney wrote in person to complain marking it as a complaint. Their legal team reviewed it and quickly agreed it was not a material change so they are allowing it to go through so worth a try …
Fiona Wilson, Hempsons LLP
I have had a similar experience and one lesson from this is to never accept instructions to prepare an LPA unless it is to be registered immediately and not at some later date
Thank you to everyone who responded to my post on this. There is clearly a big issue within the OPG with consistency of approach, but who knows how that will be resolved.
By way of update, I decided to persevere by taking my complaint to the next level, which is a letter to the chief executive of the OPG. That was just over 3 weeks ago, and today I received a call confirming that their legal team have decided that the alteration is not material and inviting me to re-submit the LPA for registration!
Now I just have to try and recover the cost of all the additional work…