It is normally essential when creating a legal document to get the procedures right, and failure to do so can cause unnecessary complications.

A recent case dealt with the problem of what happens if a person creates a document that contains an error but loses mental capacity to correct the mistake before the error is noticed.

In 2016, a woman had executed two lasting powers of attorney (LPAs). One was to deal with her health and welfare and the other her financial affairs. Her husband and two solicitors were appointed as attorneys under both.

The LPA covering her financial affairs was sent to the financial institutions she dealt with so that her attorneys could manage the accounts. Some time later, one of the financial institutions noticed that the woman’s signature on the LPA had been witnessed by one of the attorney solicitors, which technically invalidated the LPA.

As the woman had by now lost the mental capacity to create or approve an LPA, the attorney involved sought the approval of the Office of the Public Guardian for the LPA to remain in effect.

The regulations regarding the creation of LPAs are quite specific, stating that for an LPA to be given effect, a donee may not witness any signature required for the power apart from that of another donee. In other words, the attorney could not witness the woman’s signature, only that of another attorney.

The Court of Protection then considered whether the LPA could be rectified, but concluded that the woman’s mental incapacity rendered that impossible. Accordingly, the attorneys were invited to make an application to be appointed to act as ‘property and affairs deputies’ by the Court. This is essentially the same as acting as an attorney, but the work is carried out under the supervision of the Court. The practical effect is normally that it ends up being rather more expensive.

Source: Private Client Library Content