Why you should take legal advice when setting up Lasting Powers of Attorney

There can be no denying that a Lasting Power of Attorney (LPA) can be an extremely useful document. A Lasting Power of Attorney is a legal document which allows you to appoint people that you trust to make important decisions on your behalf if you become mentally or physically incapable of doing so for yourself. For more information please see our LPA factsheet:- http://www.verisonalaw.com/factsheets/what-is-an-lpa/ 

It is possible to create an LPA without the help of a solicitor. However, Denzil Lush, a retired senior Court of Protection judge, has recently highlighted some problem areas which strengthen the argument that it is preferable to have your LPAs drawn up by a solicitor.

In an interview on BBC Radio 4, Denzil Lush warned of the lack of safeguards within the present LPA system. Mr Lush said that he would not personally set up an LPA and he would rather have a Deputy appointed for him via the Court of Protection. However, a Deputyship application can only be made once and if someone lacks capacity and of course at that point the person concerned is not able to decide who should act on their behalf. At least with a Lasting Power of Attorney the person in question decides who should make important decisions for them if and when the need arises. A Lasting Power of Attorney is also generally cheaper in the long run and much quicker than a deputyship application.

The Ministry of Justice amended the forms this year, so as to make it simpler for people to set up LPA’s, but the changes were regarded by many as risky. It is now even easier for people (or their relatives, friends or carers) to set up LPAs without any legal involvement and so sadly this means that there is an increased risk of abuse/wrongdoing by those who are supposed to be looking after their loved ones. Of course, it is only the shocking cases which make the news. In reality many many families have Lasting Powers of Attorney arrangements in place and these arrangements work well and as intended. Often it is the experience of how difficult it can be to help someone who lacks capacity without an LPA in place that prompts people to get their own LPA’s in place.

Having a lawyer involved means that an independent third party is keeping an eye on what is going on. As part of the process of setting up an LPA it is necessary for someone (known as the ‘Certificate Provider’) to sign the form to say that in their opinion the person understands what they are doing and are doing it of their own free will. Unfortunately there is presently no requirement that this person should be a professional. Anybody can sign the form (such as a neighbour or friend); provided that they can say that they have known the person for more than two years and are not related to or connected with the donor or attorneys.

If you instruct a solicitor to prepare your Lasting Powers of Attorney, then they will act as your certificate provider as part of the process. This provides an opportunity for someone independent to meet all the relevant parties and for them to assess the situation and the person’s capacity. This can prove to be invaluable particularly, if someone is vulnerable and open to abuse.

Of course, there are many other reasons why you should ask a solicitor to draw up your LPA and here is a non-exhaustive list:

  • They are familiar with the forms and process and can ensure that the document is drafted correctly, so as not to be rejected by the Office of the Public Guardian;
  • They can advise you as to how/when the LPA can be used and can explain the obligations and duties of your attorneys;
  • They can draft and include any additional clauses which should be mentioned in the LPA so as to ensure that your wishes are carried out; and
  • They can give advice concerning who to appoint as attorneys and how to appoint them so as to avoid the LPA becoming unusable if some of the attorneys die or are no longer willing to act.

For more information please contact us.


  • Preparing and Registering a Property and Financial Affairs Lasting Powers of Attorney
  • Preparing and Registering a Health and Welfare Lasting Powers of Attorney
  • Help for dependents of people without Lasting Powers of Attorney
  • General (Ordinary) Powers of Attorney
  • Advice re existing Enduring Powers of Attorney and Registration of existing Enduring Powers of Attorney
  • Obtaining mental capacity reports where appropriate
    Providing advice where it is not possible to set up a Lasting Power of Attorney due to lack of capacity
  • Advice re duties and powers of Attorneys
  • Advice re disputes relating to Lasting Powers of Attorney
  • Applications to the Court of Protection including Deputyship applications

“If it had not been for the EPA I would have had real problems even discussing my mother’s affairs with banks, investment companies, government departments and care providers, much less paying her bills from her account.

“Being able to supply copies of the EPA to the various parties meant they would speak to me and act on my instructions. Without it I would have had to pursue a long, complicated and expensive legal process – at a very difficult time personally.

“I would absolutely recommend planning ahead and making an LPA. It could make a huge difference to your loved ones.”

Paul

“If it had not been for the EPA I would have had real problems even discussing my mother’s affairs with banks, investment companies, government departments and care providers, much less paying her bills from her account.

“Being able to supply copies of the EPA to the various parties meant they would speak to me and act on my instructions. Without it I would have had to pursue a long, complicated and expensive legal process – at a very difficult time personally.

“I would absolutely recommend planning ahead and making an LPA. It could make a huge difference to your loved ones.”

Paul

"We have now received all of the information for the deputyship. We are delighted with the outcome. I would like to take the opportunity to say thank you for your work and support. It was a difficult thing for us due to the circumstances, but you made it easy and that really helped.

Thank you also for the settlement of the account, we are very grateful. I have friends who have Autistic children and adults I will recommend you in the future".

Anonymous


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