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The Risks of DIY Lasting Powers of Attorney

Reasons to choose Wilson Browne

Have you ever thought about who would look after you and manage your affairs if you were unfortunate enough to sustain an injury, were struck down by an illness or disease or lose mental capacity? Who would you trust to make decisions on your behalf in relation to your affairs and always act in your best interests?

Nobody wants to imagine themselves in this type of situation however sadly it can happen and this is why everyone should consider making Lasting Powers of Attorney (“LPA’s”). By making LPA’s you can choose who makes decisions on your behalf in sometimes very difficult circumstances.

LPA’s are documents created and then registered with The Office of the Public Guardian (“OPG”) whereby the Donor (you) appoints Attorneys (people whom you trust) to act on your behalf in relation to your Property and Finances and Health and Welfare. As of October 2007, LPA’s replaced the Enduring Power of Attorney (“EPA”), although an EPA is still a valid document. The difference between an Enduring Power of Attorney and Lasting Powers of Attorney is that the EPA covers your property and finances only, however, the two different types of Lasting Power of Attorney cover your property and finances and health and welfare. EPA’s do not need to be registered until someone has lost capacity required to make decisions themselves whereas LPA’s must be registered before they can be used.

Under a Property and Financial Affairs LPA, the Attorneys appointed can manage your bank accounts, investments, pay your utility bills and can even sell your property on your behalf. The Attorneys appointed under this LPA can act on your behalf when you have lost capacity, but also if you still have capacity, for example, if you became housebound.

Under a Health and Welfare LPA, the Attorneys appointed can deal with making life sustaining treatment decisions for you if you give them the authority to do so, they can make decisions about where you live (if you were to move home), who visits you and even what you eat and what you wear. This LPA can only be used once you have lost the capacity to make these decisions for yourself.

LPA’s take between eight to twelve weeks to register with the OPG and so if you make the documents with us, the LPA’s are sent off for registration as soon as you (the Donor) and the Attorneys have signed the documents. After the eight to twelve week period the registered LPA’s are returned to us and can be used straight away, if necessary.

It is advisable to make LPA’s through a professional because they will explain what each LPA covers and how they can be beneficial to you. Some people choose to execute LPA’s without legal assistance and whilst you are completely entitled to do so, sadly mistakes can be made. Such mistakes can delay the application, incurring further costs or could even render the LPA’s invalid.

In particular, common mistakes made when creating DIY LPA’s are as follows:

  • The Donor (that’s you) may not fully understand the implications of making LPA’s and what authority they are giving to their Attorneys.
  • The Donor does not select the correct option in relation to how they wish their Attorneys to act, for example, jointly rather than jointly and severally. There are differences between each option which need to be considered.
  • The LPA’s are not signed and dated correctly i.e. they are not signed in the correct order (there is a strict order to the signing and dating of the LPA’s).
  • Witnesses have not executed the LPA’s correctly.
  • Using correction fluid on the LPA’s when a mistake has been made.
  • The correct fee has not been paid or the evidence required for any remission/exemption of the registration fee has not been included with the application.
  • Pages are missing from the documents causing delay in the registration. This could be problematic especially if an LPA is needed quickly.

It is therefore advisable to speak to a professional when wishing to make LPA’s so that you understand the best options available to you. You can also be certain that the documents will be drafted without error, to avoid delay in registering the documents and potentially incurring further costs.

For more information call our specialist team on 0800 088 6004.

Kirsty Chettle

Posted:

Kirsty Chettle

Trainee Legal Executive

Kirsty is a member of the Private Client team based in our Higham Ferrers office and is currently working towards her CILEx exams. She assists the teams on a variety of matters including Wills, probate, trusts, inheritance tax, lasting powers of attorney and more.