Pitfalls of a “DIY” Lasting Power of Attorney

A Lasting Power of Attorney (LPA) is a powerful legal document that allows a person (or “donor”) to choose one or more individuals (or “attorneys”) to handle their affairs in the event that they can no longer do so themselves, for example if they lose mental capacity. Attorneys are able to make important decisions on behalf of the donor, involving their property, money, medical treatment and end of life wishes. As such, an LPA is an extremely important document with serious implications for all involved.

All LPAs must be registered by the Office of the Public Guardian (OPG), an executive agency of the Ministry of Justice. While it is possible to create an LPA using an off-the-shelf kit (available in some high street shops), applications are traditionally made through a solicitor. However, in 2014, the OPG launched an online service to allow people to create their own LPAs without the help of a solicitor.

The perceived benefit of using a “DIY” method over using a solicitor is primarily financial, as the DIY methods are cheaper in the short-term. However, Solicitors For the Elderly (SFE) – which is an independent, national organisation of over 1,500 lawyers, such as solicitors, barristers, and chartered legal executives, committed to providing the highest quality of legal advice for older and vulnerable people, their families, and carers – is concerned that by encouraging people to create “bargain-bucket” LPAs without taking specialist legal advice, the OPG is potentially exposing them to unacceptable levels of risk and in doing so may be compromising its ability to safeguard those who are most vulnerable.

A recent SFE study shows that creating an LPA without taking legal advice carries a number of risks, regardless of whether it is done using the OPG’s online service or an off-the-shelf kit.

Firstly, there is an increased likelihood of technical errors being made on the forms. Mistakes with donor or attorney details, failure to sign and date the forms correctly and misunderstanding of the wording of the forms can all lead to LPA applications being rejected by the OPG. This is likely to prolong the application process and incur further costs, particularly where resubmission of an application is required. In the event of the OPG rejecting an LPA application, donors may have to pay a repeat application fee of £55, or even submit a whole new application for an additional £110 per document.

Unsurprisingly, the OPG has seen an increase in the number of errors made on LPA applications since launching its online service. Following the introduction of the service in May 2014, the number of applications where it was necessary for the OPG to contact the applicant for further information or documentation prior to an approval decision being made rose from 34,245 (2013) to 45,343 (2014).
Errors made on the forms may also reduce the legal robustness of the resulting LPA. For example, failure to correctly record an attorney’s details may lead to banks, hospitals and other institutions refusing to follow their instructions. Errors such as this may not be picked up by the OPG during the registration process, leaving the donor and their attorney(s) with an ineffective LPA document.

In the event that an LPA is rejected or rendered ineffective for some reason and the donor loses capacity, it may be necessary for a deputy to be appointed by the Court of Protection to make decisions on their behalf. An application for deputyship is time-consuming, stressful, and expensive – potentially costing families thousands of pounds in legal and court fees. An application typically takes around four months to be approved by the Court, but can take much longer. Meanwhile, decisions over an individual’s long-term care and finances are frozen.

Creating an LPA using a DIY method can also significantly raise the risk of a donor becoming a victim of fraud or coercion.

There are two ways in which this could happen – either by a donor being pressured to sign or agree to something that they do not understand or are not comfortable with, or by a completely fraudulent LPA being registered in a donor’s name without their consent.

Pressure on a donor is a serious risk with DIY applications – as our study shows, even highly competent participants found the process complicated and confusing without legal advice. The scope for a donor to be coerced is significant, as many donors will complete the forms in consultation with their chosen attorneys, in whom they must place a great deal of trust. It is also generally older and vulnerable people who apply for LPAs, with the majority of new donors being between 81 and 90 years old.

SFE conclude that while not everyone will need to seek help from a solicitor, for the vast majority of people this remains the most effective, safe, and legally robust option for creating an LPA.

Lisa Davies was a guest on BBC Radio Wales on Thursday 6th April talking about making Lasting Powers of Attorney.  You can listen again on BBC iPlayer by following the link below and scrolling forward to 35:45

http://www.bbc.co.uk/programmes/b08kkykl

 

 

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