Do I need a solicitor to draft my Lasting Powers of Attorney?

For many, we plan for our future by making a Will, which dictates what happens to our assets once we have died. However, what might happen if we are no longer able to make decisions for ourselves during our lifetimes is equally important to consider. This is when Lasting Powers of Attorney can help.

What are Lasting Power of Attorneys?

A Lasting Power of Attorney (also referred to as an LPA) is a legal document that allows you to delegate your decision-making authority by appointing one or more people that you know and trust (known as attorneys) to manage your affairs for you. LPAs are not just for old age; they can also be used if you were to have an accident, become critically ill or just need assistance with managing your affairs.

There are two types of LPA:

Property and Finance LPA – allows your attorneys to make decisions for you about your money and property, for example managing your bank accounts and investments or selling your home. This document can be used whilst you still have capacity, if you want it to.

Health and Welfare LPA – gives your attorneys the power to make decisions about medical treatment, lifestyle choices and where you receive care. This document can only be used once you no longer have capacity to make these decisions for yourself.

Why do I need a solicitor to draft my LPAs?

1. Experience

When you instruct a professional, you are appointing someone with experience in this area. The law and practice surrounding LPAs can be daunting and complex. By instructing a solicitor, you will receive professional and knowledgeable advice from someone who is up to date with all the changes in the law and is aware of the impact they may have on you as an individual.

2. Advice specific to you

Your solicitor will be available to answer any questions you have when you require advice. They also know the right questions to ask you, which allows them to help you make the decisions that best suit you.

An LPA gives you control over who makes decisions on your behalf if you can no longer do so and allows you to give guidance and instructions to your chosen attorneys as to how you might like your finances managed or how you might like them to make decisions about your health or ongoing care. A solicitor will be able to discuss your requirements with you and tailor your LPA to you according to your circumstances, wishes, and preferences.

3. Avoiding Errors

The process of correctly drafting and then executing an LPA is very precise. Often applications are returned to applicants by The Office of the Public Guardian (OPG) due to errors, such as signing the paperwork in the wrong order. The OPG rejected 50,918 LPAs in 2023-2024 due to errors.

It is important to note that sometimes the OPG can fail to notice any discrepancies (such as a wrongly spelt name) which can mean a registered LPA may be rejected by a financial institution, even though it has been formally registered, which can severely limit its usefulness. This is not only expensive and time-consuming to put right, but it may also be impossible to rectify if the person granting the LPA no longer has capacity. By instructing a solicitor, the process can be sped up by ensuring that the documents are prepared accurately.

A badly drafted LPA can restrict your attorney’s powers. It is important to not include any instructions that contradict any other part of the form, nor can you ask the attorneys to do something illegal. If you have complicated instructions, a solicitor will be able to give you the best advice on whether your instructions are valid and how to word them.

4. Protection

 ‘DIY’ LPAs can potentially leave you vulnerable. A solicitor will include safeguards within the LPA documents which can help reduce the risk of the powers you confer upon your attorneys being abused.

What happens if you do not make a Lasting Power of Attorney?

Unless you have a valid Lasting Power of Attorney in place, no one has the automatic right to manage your affairs if you should become unable to manage them yourself. It is a common misconception that your spouse or partner can make decisions on your behalf, however, this is not the case; for example, if you are required to move into a residential care home, they cannot access your bank account to pay your care fees.  Indeed, a bank may even freeze a joint account because there is no longer a joint mandate under which it operates.

How do you apply for deputyship if there is no Lasting Power of Attorney?

If you do not make a Lasting Power of Attorney and you lose mental capacity, your family or friends will have to apply to the Court of Protection to obtain deputyship. A deputy is someone who is appointed by the Court of Protection to make decisions on your behalf when you do not have the capacity to make decisions yourself.

An application to be appointed as a deputy is a long and very expensive process that requires several Court forms to be completed, including a medical report, and can often take between 6 and 12 months to achieve.

It is important to note that deputyship does not always grant your deputies full powers to deal with your financial affairs, in the way that you can with an LPA, and you may have to return to the Court to ask for further permissions, such as to sell property, which can prolong the application further.

How can we help?

Creating Lasting Powers of Attorney can be complex; it is not purely a form filling exercise and requires careful thought and tailored advice. If you need help with their creation or interpretation, our team is here to help. Contact us today.