What is a Lasting Power of Attorney?
Lasting Powers of Attorney (LPAs) are legal documents that allow you to appoint people (known as attorneys) to deal with either your financial or health and welfare affairs on your behalf.
Why should I use a solicitor to create a Lasting Power of Attorney?
While it is possible to complete the forms yourself, using a solicitor will help to ensure that the process runs as smoothly as possible and avoid common mistakes. If you do make a mistake when drafting your LPAs it can:
- delay the registration process while the mistakes are corrected;
- mean that the LPA is registered but then does not operate as you intended;
- in the worst cases, mean that the LPA is not valid and cannot be registered at all, so that you have to start again with a fresh document, assuming you still have mental capacity to do so.
With the Office of the Public Guardian (OPG) advising it can take up to 20 weeks to register LPAs with no errors, it is best to avoid issues in the first place.
The top 5 mistakes to avoid when creating a Lasting Power of Attorney
1. Use the right document
There are two types of LPA – one to deal with your finances, and one to deal with your health and welfare. The documents cannot be combined, even if you want to appoint the same attorneys for both. If you try to add instructions about financial affairs into the health and welfare document for example, this will cause problems with the registration.
2. Signing in the wrong order (or the wrong place)
Several people have to sign the LPA – you as the “donor”, all your attorneys and the Certificate Provider (explained further below). Many of these signatures require witnesses. The signing must be done in a specific order for the document to be registered. We can make sure everyone signs where they are supposed to and in the required order, so that the registration goes through first time.
3. Contradicting instructions
LPAs have a section where you can add non-binding wishes, know as “preferences” and binding instructions which your attorneys must follow. If you add too many instructions, you can end up accidentally limiting your attorneys’ powers and making it difficult for the document to work in practice.
You cannot make unlawful requests, such as assisted suicide. If you try to do so, the OPG must seek guidance from the Court of Protection, which could slow down the registration and possibility leave you with an invalid LPA. We can advise on suitable preferences and instructions to make sure you have a valid document which will function in practice.
4. Appointment of attorneys
Where you have more than one attorney, a decision needs to be made as to how they can act – jointly (all acting together), jointly and severally (acting together and independently) or a mixture of both. We can advise on the most suitable appointment to make sure that you are not left with unintended consequences when the document is used, and that you do not create confusion by selecting one option and then leaving contradicting instructions in the LPA.
5. Certificate provider
A certificate provider has to sign the LPA with you to confirm that you understand the purpose of the LPA, the scope of the authority you are giving and that there is no undue pressure or fraud being placed on you to make it.
You can use someone that you have known for the last two years. However, it is possible that they might be called to Court to confirm their findings when the document needs registering. This could be a problem if the registration is delayed and your Certificate Provider might have died, lost capacity, cannot remember or be untraceable. Using a professional means that records will have been retained, and they may also have more weight in Court should it come to it.
How can our solicitors help?
We have specialist lasting power of attorney solicitors who can provide expert legal advice and guidance on creating and registering a lasting power of attorney, ensuring that your wishes are respected and your affairs are managed in the event of mental incapacity. We can also assist with challenging or revoking existing powers of attorney and provide ongoing support to attorneys, ensuring they understand their responsibilities and act in the best interests of the donor. Trust in our experienced team to provide peace of mind and security for you and your loved ones.