Lasting Powers of Attorney (LPAs) are increasingly being recognised as a necessity when planning for our future. On the face of it they are quite straightforward - you can quickly go online and complete one yourself. The Powers of Attorney Bill, which received Royal Assent in September 2023, introduces significant changes to the law relating to LPAs including allowing digital or paper signing of LPAs, restricting the ability to register an LPA to the donor only, and expanding the group of people who can lodge objections to the registration of an LPA. These developments aim to create a more modern and secure LPA service, ensuring better protection for donors and more efficient processes for attorneys. However, they are still not a simple ‘form-filling’ exercise and should always be executed with specialist legal advice.
I suppose I would say that as I am a solicitor, but read on.
What are LPAs?
LPAs are documents that allow you to appoint trusted individuals to make decisions on your behalf when you’re unable to and sometimes when you simply choose not to.
There are two types of LPAs:
1. A Health and Welfare LPA, which can only be used in the event that you have lost mental capacity and are unable to make medical and welfare decisions for yourself and to the extent that you are unable to make such decisions.
2. A Property and Financial Affairs LPA, which is used when you’re unable to make decision for yourself, as above, but can also be used whilst you have mental capacity, if you have authorised that in the LPA.
To summarise, the Health & Welfare attorney would decide that you moved into a care home, and the Property & Affairs attorney would arrange payment of the fees.
There is no doubt that they are useful as they enable your attorney to do everything you can do yourself and can prevent expensive and complicated legal problems if capacity is lost at some point in the future.
However, the fact that they enable your attorney to do everything you can do yourself can be problematic in itself if you have not fully appreciated that fact, and that too can cause complicated legal problems. LPAs made without proper advice and choice of the attorneys can, in the wrong hands, be open to abuse and mismanagement. LPAs and attorneys are not subject to oversight and there is no independent vetting of the suitability of attorneys.
Don’t forget that under a Health & Welfare LPA your attorney decides, potentially, where you should live and with whom, who you should see, what should you eat, what you should wear and other matters of day-to-day care, consent to dental or medical treatment including life sustaining treatment if this is specified in the LPA.
Can I make Lasting Powers of Attorney without a solicitor?
The simple answer is yes you can. You can obtain the forms yourself, or go on-line, and carry on. The Pandemic saw an increase in DIY LPAs, which was good, but there were and still are problems.
The main one is lack of mental capacity. The donor might not have had the capacity to execute an LPA at the time and the consequences may not have been fully explained to them. If the donor did not have sufficient mental capacity to authorise someone to act as their attorney, then the LPA is not valid. These issues only come to light when an LPA is challenged and the solution, or eventual decision, can only be based on the evidence available at the time the LPA was executed. It is unlikely that there are notes of conversations to refer to so that proof can be shown one way or the other
The problem people prefer not to consider is that their chosen attorneys might abuse their power. Attorneys have a duty to act in the donor's best interests and use their money and assets for the benefit of the donor solely. However, in some cases attorneys have abused their power by borrowing money from the donor or giving themselves early payments of their inheritance. This is in fact illegal and in most cases, gifts must be approved by the court.
Solicitors act as an important safeguard to ensure that the donor understands what LPAs are, that they have the mental capacity to make one and that they are freely giving the power and have not been pressured into signing.
They also ensure that the LPA has been prepared and signed correctly and without issues that could make it invalid. LPAs must be registered with the Office of the Public Guardian (OPG) before they can be used and if they are submitted containing mistakes, they will be rejected. As LPAs are usually not used until the donor has lost capacity this can be problematic. If the OPG requires a new LPA to be completed and the donor has already lost capacity, the family will most likely have to apply for a deputyship order instead – which is a much more costly and lengthy process.
We can help with all of this and if you would like our guidance please contact Jay Woodward on 01489 864189 or at jay.woodward@lawcomm.co.uk.
