3rd June 2022
Having a lasting power of attorney (LPA) in place is one of the most logical and important decisions you can make in your life. When deciding to create an LPA, you may ponder the thought of a do-it-yourself LPA instead of enlisting the help of a solicitor. Creating your own LPA may seem cost-effective at the time, but in the long run, it can cost more than you may know.
If an LPA is completed incorrectly or information is missing, it can be left open to abuse or can even be deemed invalid. In this article, we will be addressing the risks of creating a DIY lasting power of attorney and what could happen if your LPA is considered invalid.
What a Lasting Power of Attorney Does
An LPA is a legal document that allows the donor (that’s you) to appoint individuals (referred to as the attorney) who can make decisions for you if you become unable to make those decisions yourself. The two types of LPAs are Health & Welfare and Property & Financial Affairs. In the case of either LPA, you can name one person as your attorney, or you can name multiple people who will work together to make all decisions.
Health & Welfare LPA
A Health & Welfare LPA will give an individual that you trust the authority to make decisions on your medical care. Some of these decisions can include:
- Medical treatments you receive
- Where you receive care
- What type of care that you receive
- Assistance with daily routines such as eating or washing
Property & Financial Affairs LPA
In a Property & Financial Affairs LPA, the appointed attorney makes decisions regarding your assets. The person you name as your attorney should be someone you trust, as they will have access to personal information. Some of the decisions that your attorney can make may include:
- Paying household and medical bills
- Collecting and claiming benefits
- Maintaining property that you own
- Selling property that is in your name
Risks of a DIY Lasting Power of Attorney
Having an LPA will give you peace of mind knowing that someone you trust will be in charge of making decisions on your behalf if something happens to you. However, more and more people are turning to templates to create their LPA without seeking the advice of an experienced solicitor. Here are some of the risks you take when drafting your own LPA.
The Application May Contain Mistakes
The Office of Public Guardian (OPG) has reported that approximately 15% of the LPA applications they receive contain errors. When an application contains errors, they either cannot register the application, or the process will take longer than usual.
The Applicant Doesn’t Have Full Mental Capacity
If the donor doesn’t have the full mental capacity to understand what they are doing and the consequences of their actions when creating an LPA, the LPA is not valid. The Court of Protection will then step in and appoint a deputy to make the necessary decisions for the donor.
One of the biggest dangers of a DIY LPA is that someone with dishonourable intentions could influence the donor into signing something without fully understanding the ramifications. When you enlist the help of a solicitor in drafting your LPA, not only will they ensure that the document is correct, but they also provide support and advicel to the donor. In addition, they can ensure that the appointed attorneys are aware of their duties and know the limits of their power.
Also, to be valid, an LPA requires a certificate from an independent third party that confirms the donor understands the document’s purpose and the powers they are giving to the named attorney. When you work with a solicitor, they can provide that certificate.
What Happens if You Don’t Have a Valid LPA in Place
If something happens to you and you do not have a valid LPA in place, your loved ones would have to apply with the Court of Protection for a Deputyship Order. It can take months for a Deputy to be approved, and during this time, all of your assets will be frozen. When the courts are left to appoint a deputy, there is also the risk of having a deputy appointed that you would not have chosen yourself.
Allow Us to Assist You With Vital Estate Planning Documents
Powers of attorney are valuable estate planning instruments because they enable people to nominate others to manage their financial and healthcare matters if they are no longer able to make choices for themselves. Estate owners, on the other hand, should exercise caution when selecting an agent.
At Elizabeth Middleton Solicitors, our estate planning lawyers can assist you in establishing or revoking your Lasting Power of Attorney and avoiding future issues.
Contact us today to discover more about all the vital legal advice or get answers to any related questions you may have.