The problems that may be encountered and why you should use your solicitor
The trend over the past few years has been increasingly to move everything online and Lasting Powers of Attorney are no exception. With the ability to do things online comes the temptation for people to try and do things themselves.
In my article last week I outlined the pitfalls of DIY and online Wills and probate applications, this week I highlight the problems that can be encountered when drafting Lasting Powers of Attorney without using a solicitor and why the role of your trusted advisor is so important.
Lasting Powers of Attorneys – LPAs
Lasting Powers of Attorney are very powerful tools when drafted properly. There are two types, one for property and financial affairs and one for health and welfare matters.
The Property & Financial Affairs LPA
With this LPA the person making it (the donor) can appoint attorneys to make decisions regarding your financial affairs, including paying bills, dealing with bank accounts and even selling property. You can decide whether the attorneys should be able to make decisions as soon as the LPA is registered and you give permission, or only if you lose mental capacity. The first option can be useful, particularly if mobility is becoming an issue, but again we emphasise to clients how important it is that they only appoint attorneys that they trust as the attorneys will have access to their finances.
The Health & Welfare LPA
Again, this LPA allows the donor to appoint up to four attorneys to make decisions for them should they lose the ability to make decisions for themselves, ie if they lose mental capacity. The attorneys can then make important decisions regarding that person’s medical care and treatment, be involved in decisions about where they should live and, depending on how the LPA has been drafted, they could give or refuse consent to life sustaining treatment on that person’s behalf.
It is very important that both Lasting Powers of Attorney are drafted properly to ensure that they enable your attorneys to do what you want them to be able to and getting them drafted by a legal professional is recommended.
In particular the professional adviser can act as a safeguard for the donor to make sure that the person making the LPA is doing so voluntarily and is not be pressured into making the LPA. They will check that the donor has the required capacity to make the LPA. If they do not then the LPA would not be valid and an alternative route would need to be explored.
A professional adviser will take time to understand what the donor wants their attorneys to be able to do and incorporate this, where it is practicable to do so and not prohibited, into the LPA so that the LPA drafted can be used as the donor intended.
Importantly a professional can ensure that there are safeguards built into the LPA to reduce the risk of a misuse or even abuse of the LPA by the attorneys.
Finally, LPAs have to be signed in a very strict order and getting this wrong will invalidate it. This can be avoided by using a legal professional.
LPAs can only be made by someone who has mental capacity. Unfortunately we too often see situations where LPAs were not taken out in time and are not an option. In these situations we are able to help with applications to the Court of Protection for a deputy to be appointed. However this is not ideal as such applications are expensive (the court application fee alone is £385), take a long time and almost always happen at a time of crisis.
Perhaps most importantly, when you have made LPAs you know that the people you trust and have chosen will step in should you lose mental capacity.
In short, using solicitors should take the stress out of the process and ensure that all steps are correctly followed.
Please contact me via email [email protected] or call our Oundle branch on 01832 273506 if you would like to discuss any of the issues raised above and I, or another member of our Legal 500 ranked private client team, will be happy to help.
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