The Dangers of a Poorly Drafted LPA
05 September 2017
In England and Wales you can draft your own Lasting Power of Attorney (LPA) documents. However, like writing your own Will, the dangers of doing so are significant. If a mistake is made, it could be found invalid or ineffective – which might only become apparent at the precise time it is needed, meaning you wouldn’t be able to do anything about it.
If errors do make your LPA invalid or ineffective and you’ve lost mental capacity, your loved ones would be left with no other choice but to apply to the Court for a Deputyship Order; which can be a long and expensive process.
Lasting Power of Attorney
Lots of people have heard of a Will, but not so many people know or understand what a Lasting Power of Attorney is. In fact, when we asked people why they didn’t have an LPA*:
- 13.68% said they’d never heard of it before
- 6.93% said they’d heard of it but didn’t understand what one is
- 32.39% assumed their family would automatically take over their affairs if they lost mental capacity.
So just to clarify matters, a Lasting Power of Attorney is a legal document that allows you to appoint people (called Attorneys) to make decisions on your behalf, should there come a time in the future when you’re unable to make these decisions for yourself.
There are actually two types of LPA – one deals with your health and welfare, the other deals with your property and financial affairs. It’s usual, although not compulsory, to have both in place at the same time.
You need to put a Lasting Power of Attorney in place before you lose mental capacity. Only you can make one – your spouse or family members are not allowed to do it for you. It needs to be registered with the Office of Public Guardian in order to be activated and it can continue to be used by your Attorney if you do subsequently lose mental capacity.
If you don’t bother to make an LPA, perhaps because you assume your family will step in, then it can make things difficult for your loved ones. That’s because they don’t automatically have the legal authority to manage your affairs, and instead will have to make an application to the Court for something called a Deputyship Order.
A Deputyship Order is generally much more expensive and more time consuming than putting a Lasting Power of Attorney in place. The onus will also be on your family members to sort it out, and this will be at a time when you’re unwell, making things all the more stressful.
DIY Lasting Power of Attorney
To avoid all this, it’s best to put a Lasting Power of Attorney in place while you still can.
Now, you can put LPAs in place yourself without legal advice. But as they are legal documents you need to make sure you understand the legal jargon and complexities.
For instance, are you going to appoint your Attorneys jointly, or jointly and severally? How do you want your Replacement Attorneys to act, because it largely depends on how you’ve appointed your original Attorneys? And if you want to leave instructions for your Attorneys, do you know how to make these instructions legally correct?
These are all things that can cause confusion when making an LPA. And if you put the wrong thing down, it could mean that your wishes aren’t carried out as you’d hoped.
For example, if your Attorneys are appointed jointly and one of them dies, they must all step down. Your Replacement Attorney will then be called on to act. Or if you don’t have any replacements specified, and you’ve already lost mental capacity, your LPA will no longer work. Your loved ones would then have to resort to getting a Deputyship Order, even though you’d gone to the trouble of putting a Lasting Power of Attorney in place.
Then there are potential mistakes that could actually mean the LPA is invalid from the start – perhaps because it hasn’t been signed and witnessed correctly. When this happens the LPA will be rejected by the Office for the Public Guardian and additional Court fees will be incurred if you need to re-apply to register it.
Professionally Drafted LPAs
So there are all sorts of pitfalls associated with DIY LPAs, with the biggest risks being that the document will be invalid, or that your wishes will not be carried out as you’d wanted. And when you consider that Attorneys have the legal authority to make important decisions about your life, the implications of this are pretty major.
To ensure this doesn’t happen, it’s best to consider getting a professionally drafted LPA. It does cost more money, but it will give you peace of mind that you have a legally accurate LPA in place that follows your instructions to the letter. It will also prevent your loved ones from having to suffer the delays and costs that come with applying for a Deputyship Order.
*Research carried out by Atomik in May 2017 involving 2006 participants across the UK.