Pitfalls of DIY Lasting Powers of Attorney

This is the second of three articles designed to highlight the pitfalls of do it yourself Wills, Lasting Powers of Attorney and Probate.  Our first article concentrated on the pitfalls of DIY Wills – which you can read here.  This article now explores the dangers of creating your own Lasting Powers of Attorney (LPAs). 

A question we are often asked is, why use a solicitor to prepare LPAs when you can create your own?  Although you can put in place LPAs without the assistance of a solicitor and you might save some money in doing so, in most cases, you will often end up having to pay more in the long run if you make a mistake along the way.  Incorrect personal information and/or the failure to sign and date the LPAs correctly and/or misinterpreting the LPA terminology, can result in applications to register LPAs being rejected by the Office of the Public Guardian (OPG).  This is the government body that registers and validates all LPAs, allowing them to be used by your attorneys in the future.  

Some of the common pitfalls associated with DIY LPAs are outlined below:

  • LPAs, like Wills, allow you to make provision for the future. They are legal documents, typically over a dozen pages in length, and the procedure for putting LPAs in place is strict and must be adhered to exactly.  There is an order, for example, in which the LPAs must be signed.  If the procedure is not completed correctly, the OPG can refuse to register the LPAs, which means they cannot be used by your attorneys until such errors have been rectified.  This can then result in having to start the process again from scratch and during the intervening period, there will be no valid LPA in place until the process has been completed properly.  This can cause considerable delay and inconvenience to your attorneys especially if they need to make urgent decisions on your behalf. 
  • Choosing the right people to act as your attorneys must be considered thoroughly from the outset. You need to consider whether the people you wish to appoint are best suited to take on the role.  It might not always be the case that you will have the same people acting in relation to your financial and/or health and welfare decisions.  The matter of choosing your attorneys can sometimes be dictated naturally, by way of moral obligation, rather than what is in your best interests in practical terms.  This is where a discussion with your solicitor can be invaluable.  Furthermore, if you only have one attorney appointed, you should consider appointing another.  If no one comes to mind, we can discuss with you the option of appointing the Herrington Carmichael Trust Corporation to give you peace of mind in knowing that if anything were to happen to your first appointed attorney(s), you will still be covered. 
  • LPAs provide you with several choices and options not only in relation to who your attorneys should be but also, what they can and cannot do and when and how decisions should be made on your behalf. There are occasions, for example, when someone may not have set up their LPAs in the way they had originally intended.  Difficulties can then arise when the LPAs need to be actively used by your attorneys.  Once an LPA has been created and registered with the OPG, it cannot be altered.  It is imperative, therefore, to get it right from the offset.  Not fully understanding the differences between, for example, joint or joint and several appointments of attorneys can cause confusion.  In these circumstances, you would have to make do with what is in place already or, start the process again so long as it is not too late in the sense that you still have the required mental capacity to make LPAs.  By involving a solicitor in the process, you will have certainty in knowing what each of the various options means so that you can ensure that the options selected are the right ones for you.
  • We are also increasingly finding that attorneys are not fully aware of their responsibilities and the accountability placed on them when they agree to take on the role of an attorney. There are limitations on what attorneys can do.  There are not many attorneys, for example, aware of the fact that they are obliged to keep accounts on an annual basis.  Official statistics show that an increasing number of attorneys are acting improperly, beyond their powers.  Discussions with your solicitor will help you understand these points and ensure that the people you have chosen to act on your behalf are ‘fit for the job,’ thereby reducing the risk of attorneys abusing their powers in the future.  You may be interested to hear that the OPG carry out nearly 3,000 safeguarding investigations per annum and out of these, 25% of cases approximately end up with the Court of Protection. 

In summary, it can extremely beneficial to instruct a solicitor to assist you with making LPAs.  The main benefit is peace of mind.  If the procedure is completed correctly from the outset, you can be sure that whoever you have chosen to act as your attorneys will be the ones with the legal authority to make decisions on your behalf when the time comes.  Your solicitor will discuss with you the various options available and ensure that all the associated paperwork is prepared correctly, which, in turn, will dramatically reduce the risk of your LPA registration applications being rejected.  

If you would like to discuss making LPAs in more detail, please contact us  at HCprivateclient@herrington-carmichael.com or call us on +44 (0)1276 686 222  

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter. 

Charlotte Drury-Woods
Partner, Head of Private Wealth & Inheritance
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This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

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