Recently the Court of Protection decided on 18 applications made by the Office of the Public Guardian (OPG) in relation to certain provisions put in the document.
Specifically the Court looked at whether the provisions were valid or not. If the OPG is unsure about a certain provision included in a Lasting Power of Attorney they can make an application to Court to ask a Judge to make a ruling. The decisions in these applications have provided some helpful guidance and suggest that faulty instructions are more likely to make the Lasting Power of Attorney invalid rather than the donor simply giving guidance.
Overall it appears that if the intention of the donor is clear, then it is more likely the provision will stand on the presumption that the donor may have made an error with the form. For example if the donor has chosen their attorneys to act jointly and severally but then include a provision that for financial decisions under £150 the attorneys can act alone but anything over this amount they must act together. The intention here is clear and the donor should have chosen the jointly and several for some decisions and joint for others.
Another example of where a provision was invalid included a situation where the donor had appointed attorneys jointly and severally but instructed that at least two attorneys must make any decisions, this was found incompatible with the joint and several appointment.
When making a Lasting Power of Attorney it is important to ensure that any provisions included are compatible with the appointment of your attorneys to avoid an LPA being invalid. It would be advisable if you are thinking of including more specific provisions in a Lasting Power of Attorney to seek specialist advice to try to avoid any potential issues when it comes to registration of the document.
Here at Linder Myers we are very familiar with Lasting Powers of Attorney and can offer assistance with the preparation and registration of Lasting Powers of Attorney.Find out more about our Court of Protection department