The dangers of a DIY Lasting Power of Attorney

DIY LPA

A Lasting Power of Attorney is one of the important documents that everyone aged 18 and older should have. It allows you to nominate people you trust to make decisions for you, should you become unable.

“One person in the UK develops dementia every three minutes. Yet relatives can’t just walk into a bank and access your money, even if it is to pay for your care. Unless you’ve a Power of Attorney, loved ones would need to apply through court, which can be long and costly. So get it sorted.” ~ Jenny Keefe and Martin Lewis, Money Saving Expert

“There’s no specific age when you should consider making a Power of Attorney. Young people can lose capacity through accidents. But if someone is diagnosed with a condition likely to cause loss of capacity, they may be well advised to think about who they want to make decisions for them when they can no longer do so.” ~ Age UK

LPAs aren’t just for the elderly – people can lose capacity at any age, due to an accident or illness. That’s why it’s important for every adult to take the simple step of making an LPA while they are still in good health. But should you use a lawyer or can you just do it yourself?

Simple at a glance

Lasting Power of Attorney forms are simple at first glance. There are two types – one for finance and property matters, and one for health and care decisions. You appoint attorneys and decide how they should make decisions – jointly or separately (or jointly for some matters, separately for others).

Usually you’ll also specify replacement attorneys, in case your first choice of attorneys cannot act. Then, you’ll decide when they can act – with health and care decisions, this is always when you’ve lost capacity but with property and finances, this can be from the point the LPA is registered with your permission.

You’ll also set out any preferences and instructions, with preferences being like a request and instructions being binding.

Pitfalls and problems

Simple so far, right? Unfortunately there are quite a number of potential pitfalls in the above steps. Appointment of attorneys and how they can act is the first. If you appoint two attorneys and specify that they must act jointly, what happens if they cannot agree? Further, if one can no longer act, because they have been appointed jointly, the other cannot act either so you lose both of your first choices and your replacement attorneys will step in. Of course, the same issues can impact the replacements too – if one cannot act, neither can the other and the document is rendered useless.

Preferences and instructions can also be problematic, particularly if the instructions conflict with other areas of the document or are not worded correctly. Ambiguous instructions can also render the document effectively useless.

A further consideration is the drafting where you also have an Advanced Medical Directive as this needs to align perfectly with your LPA.

In addition, if you own a business or you are a director of a business, a separate Business LPA should be drafted to cover your business interests and careful consideration needs to be given to the Company’s Articles of Association or Partnership Agreement, either of which may contain redundant provisions following amendments to the Mental Health (Discrimination) Act 2013.

An experienced lawyer can identify such issues and provided tailored advice, based on your circumstances. Money Saving Expert advise:

“The LPA is a powerful legal document. You may wish to get a solicitor to help if you’re unsure about the process, the family does not get on or there are complex assets, such as businesses or overseas property.”

Mistakes happen

A recent case, Office of the Public Guardian v PGO & Ors, Re: BGO [2019] EWCOP 13, demonstrates the importance of getting legal advice in the process.

In this case, the person making the LPA (known as the Donor) executed two LPAs appointing her husband and two solicitors as her attorneys.

The LPAs were registered by the Office of the Public Guardian after which the Donor lost mental capacity.

It was then noticed that one of the attorneys had witnessed the Donor’s signature, which contravenes Regulation 9 of the Lasting Power of Attorney, Enduring Power of Attorney and Public Guardian Regulations 2007.

The court ruled that the donor’s LPAs were invalid. Per Paragraph 18 of Schedule 1 of the Mental Capacity Act 2005, the court must direct the Public Guardian to cancel the registration of an instrument as a lasting power of attorney if it determines under Section 22(2)(a) that a requirement for creating the power was not met. The Public Guardian was therefore directed to cancel their registration.

The Donor could not make new LPAs as she had lost capacity. The only course of action left at this stage was for an application to be made for a Deputyship Order from the Court of Protection. This is far longer process with more expense and there is no guarantee that the person applying for the order will be the one that the Donor would have chosen.

Read the full text of Office of the Public Guardian v PGO & Ors, Re: BGO [2019] EWCOP 13 on Bailii

Around 15% of applications contain errors

The OPG themselves say that around 15% of the forms they receive contain errors. They state, “it’s essential to get someone to check over the forms before sending them to OPG.”

Unfortunately the OPG don’t always spot these errors on registration as the above case proves. If they are missed, the document may be of no use when it is needed as usually at the point, the Donor has lost capacity and cannot sign a new form. Common errors according to the OPG include:

  • Using the wrong form
  • Using an out of date form
  • Mixing up who should sign where
  • Signing the forms in the wrong order
  • Vague instructions as to life sustaining treatment
  • Contradictory instructions, such as appointing attorneys joint and severally then instructing them to act together
  • Instructions that make something unlawful compulsory
  • Missing pages
  • Missing signatures or details
  • Using pencil or correction fluid

It’s not as expensive as you might think

Whilst we’ve heard of some firms charging up to £1,000 per LPA, we’re not those firms! Our prices are fair and reasonable, and we offer some great value packages and payment options. Call us on 0800 788 0500 or email info@aprilking.co.uk to make a free one-hour appointment, without obligation.

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