A plethora of information is available in this area and online “tools” are increasingly enabling individuals to prepare Lasting Powers of Attorney (“LPAs”) themselves without seeking professional legal advice.
An LPA is an important legal document that allows a person otherwise known as a “donor” to choose one or more individuals known as “attorneys” to make financial and/ or healthcare decisions on the donor’s behalf. These documents would be generally used in the eventuality that the donor becomes, subsequent to registering the LPAs, incapacitated or if they lose mental capacity. Attorneys will then step in, subject to any restrictions, and make decisions on behalf of the donor pertaining to their home, bank accounts, the running of the donor’s business, medical treatment and/ or end of life wishes as appropriate.
An individual should consider preparing LPAs relating to Financial Decisions and Health & Welfare Affairs which are specific to their individual circumstances. However, the pitfalls of preparing LPAs without first obtaining professional legal advice could lead to all sorts of problems and repercussions – a few examples are given below.
LPAs may become unworkable if the individual has failed to adequately reflect their particular circumstances on the forms or has produced ambiguous instructions and/ or preferences. This consequently increases the risk of mistakes and failure to comply with the stringent requirements and structure of the Office of the Public Guardian, the body that registers LPAs.
In the event that the forms are completed incorrectly or there has been failure to comply with the signing formalities, the Office of the Public Guardian may reject registering the LPAs. If this is the case and the forms cannot be corrected within a specified timeframe, the individual may lose their registration fee or a proportion of it, resulting in additional fees being incurred upon submitting a further application.
Fraud or coercion
A solicitor acts as an important safeguard when preparing LPAs; they are best placed to ensure that their client is not being forced into entering the LPAs and that they understand the nature of the agreement they are entering into. In addition, a solicitor offers the service to act as their client’s Certificate Provider and in doing so they are obliged to ask appropriate questions pertaining to their client’s circumstances. Furthermore, a solicitor must ensure and be satisfied that their client fully understands and is comfortable with the process. A solicitor’s exclusion from this process can lead to a number of problems, such as, the risk of an LPA being falsified, or potentially increasing the risk of the individual preparing and registering LPAs under duress i.e. against their will.
Overlooking complex and important situations
An individual may have a business interest which needs to be considered at the time of making their LPAs or they may wish to consider life-sustaining treatment in the event of a medical crisis. Consequently, by preparing a “do it yourself” LPA, the individual risks the possibility of complex situations being overlooked, ultimately resulting in unforeseen repercussions.
Having worked so hard to accumulate the very asset the individual is endeavouring to protect and facing difficult choices regarding their healthcare decisions, it is surely worth the expense of having a solicitor on board to guide you through the process. The solicitor will help ensure that the LPAs are appropriate and specific to the individual’s future circumstances, so why risk it?
The above is accurate as at 08 September 2020. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case by case basis.