Who Signs A Lasting Power Of Attorney?
Posted on 11th August 2020
A Lasting Power of Attorney is a legal document which can be put in place to allow a person (the Donor) to appoint a person or people that they trust to act on their behalf (the Attorneys) to make decisions. This can either be decisions about Health and Care or Property and Finances. If the Donor wants to make sure that they are covered for both types of decisions, they would need to make two separate Lasting Powers of Attorney, one for each.
Once the Lasting Power of Attorney documents have been correctly completed, they must be signed by the Donor, the Certificate Provider – the person who is attesting to the fact that the Donor has capacity to be making the documents, the Attorneys and the witnesses – who are watching you sign the documents and confirming that you have signed them in their presence. Everyone must sign the documents, in the correct order, before they can be registered.
As soon as you have completed the documents with the required information, our team of expert Lasting Power of Attorney Solicitors would suggest ensuring that all parties sign the documents as soon as possible. Otherwise, if you have drafted the documents but not signed them yet, and then you lose your capacity, you would not be able to complete them.
Providing that a Lasting Power of Attorney is signed whilst you have capacity, and it has been completed and witnessed correctly, your Attorneys could register it in the future. However, our Lasting Power of Attorney Solicitors would not recommend this as:
If there are mistakes on the form, or if anyone has not signed it correctly (even the witnesses), then it is likely that it will be rejected. If you have lost capacity, you would not be able to re-sign it. Therefore, your Attorneys would be unlikely to be able to make decisions on your behalf, or deal with your affairs.
Between the time of applying to register the document and receiving confirmation of the registration from the Office of the Public Guardian (which is in the region of 8 to 10 weeks, under normal circumstances), your Attorneys will not be able to make decisions on your behalf. If you have lost capacity and the Attorneys are awaiting the completed and registered document from the Office of the Public Guardian, they may not be able to make decisions.
If, for example, you need medical care urgently, or they need to access your bank account to pay for your day-to-day living, they will not have the power to help you.
So, for these reasons we usually recommend registering the forms as soon as you have signed them. That way, any mistakes or omissions can be corrected and, hopefully, as soon as you need help, you will be able to receive it.
Who can witness Lasting Powers of Attorney?
Every signature on a Lasting Power of Attorney, except for the final section – applying to register the document – and the Certificate Provider’s signature, must be signed in the presence of a witness, who must also sign the documents.
More often than not, when our Lasting Power of Attorney Solicitors draft the documents, a member of our team will act as the Certificate Provider and the witness for the Donor. However, quite often, we will send the documents out to the Attorneys, for them to sign and have witnessed themselves. Due to this, many Attorneys will contact us to check who can act as their witness.
In theory, the signatures of the Attorneys could be witnessed by the other Attorneys. However, in practice, our expert team would never recommend this as if there is a dispute over the validity of the documents, it could be more difficult to challenge a claim if the Attorneys have witnessed each other’s signatures. Therefore, we would ask Attorneys to use an independent and unrelated person, over the age of 18 who has capacity themselves, to act as a witness. For example, a neighbour, a colleague or a friend would suffice.
In terms of the Donor, the Attorneys cannot witness their signature. This must be someone independent and, again, over the age of 18 with capacity.
When the Lasting Power of Attorney is signed, the Certificate Provider must also sign to certify that the Donor has capacity. Therefore, we would suggest that the Certificate Provider acts as a witness for the Donor.
In what order should Lasting Powers of Attorney be signed?
With both Financial Decisions and Health & Care Decisions Lasting Powers of Attorney, the Donor must sign the documents before anyone else does. In fact, as a rule of thumb and to make it easier to remember, the pages should all be signed in order. However, to clarify, the Attorneys can sign in any order – as long as the class of them sign at the correct time.
The order for signing is:-
1. The Donor
2. The witness to the Donor’s signature
3. The Certificate Provider
4. The Attorneys/replacement Attorneys
5. The witness to the signature
6. The Donor or the Attorney(s) sign the application to register
Providing that the Lasting Powers of Attorney are signed in the correct order, the documents do not have to be signed on the same day or at the same time. The Donor could sign one day with the Certificate Provider, then ask the Attorneys to sign over the next couple of days.
Can I complete the witnesses’ details before they sign?
Yes, you could complete the section for the name and address of the witnesses before they sign the documents, however, it is not always recommended to do this. If the witness is unable to sign the document when the Attorney is ready, they may want to use another witness. If they do so, the Attorney and witness would need a new page to sign and complete. Fortunately, it will not take the witness long to sign and complete their details.
Making amendments and corrections to the Lasting Powers of Attorney
During the registration of the documents, the Office of the Public Guardian could reject the documents if any amendments or corrections are not dealt with properly. The best way to deal with these is, quite often, to replace the pages, especially if they need to be signed.
However, if you have no option but to amend the documents by hand, you should cross through any errors and write the correct word or number next to it, initialling the amendment and having the witness initial, too. For example, if there is a spelling error on the page where the Attorney is signing, they should make the amendment, and then initial, with the witness initially, too.
Making a Lasting Power of Attorney
At MG Legal, our expert Lasting Power of Attorney Solicitors offer a first-class service for making and registering the documents. We have years of experience in drafting Lasting Powers of Attorney for people who are making them well in advance of needing them, to people who are recently diagnosed with dementia or another degenerative health condition.
As members of Longridge Dementia Friendly Community, our team pride ourselves in being able to help people of all walks of life to complete the documents that they need, before it is too late.
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