A Lasting Power of Attorney (LPA) is a powerful document, enabling you (the Donor) to appoint an individual or individuals of your choosing (your Attorney(s)) to manage your financial affairs and/or to make decisions regarding your welfare, should you ever become unable to make those decisions yourself.
Traditionally, Donors have instructed a lawyer to prepare the forms. However, it is now possible for people to draft their own LPAs. So, why use a solicitor?
The most obvious perceived benefit of preparing a DIY LPA is financial; saving money in legal fees is often attractive. However, the potential risks are significant.
Drafting the LPA – things to consider:
- Choice and number of Attorneys – How many Attorneys do I need? Do I need to appoint a Replacement Attorney? Would I like them to make all decisions together, or am I happy for them to make decisions together and independently of one another, or a combination of the two?
- Preferences and instructions – Do I want to impose binding restrictions on my Attorneys, or just offer guidance? How should I communicate these to my Attorneys?
- Mental and physical incapacity – For a financial LPA, do I wish to limit the LPA so my Attorneys can only make decisions if I lose mental capacity? What are the risks and benefits?
- Life-sustaining treatment – For a medical LPA, would I like my Attorneys to have authority to give or refuse consent to life sustaining treatment?
A solicitor will guide you through these elements carefully and ensure the document is drafted to properly reflect your wishes. If a DIY LPA is drafted incorrectly, the ramifications can be significant. For example:
- Technical errors in the LPA could result in it being rejected by the Office of the Public Guardian when the registration application is submitted, resulting in delays and possible additional costs in correcting.
- The LPA could be rejected or misinterpreted by a financial or medical institution, causing disruption and distress. The document may not adequately express your wishes at all.
Fraud and undue influence
A solicitor will ensure you understand the purpose of the document and are not acting under the influence of anybody else. Sadly, with the introduction of DIY LPAs, there is a very real risk of vulnerable people either being coerced into making an LPA they do not understand, or of somebody else simply making the application in the name of a vulnerable person who is totally unaware. Both scenarios could result in serious financial or other abuse further down the line.
For more information or advice on LPA, please contact Laura at laura.walkley@twmsolicitors.com.
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