Lasting Powers of Attorney: The pitfalls of Do-It-Yourself documents
As a solicitor specialising in the preparation of Lasting Powers of Attorney (LPAs), I often encounter people who say that they don’t need a solicitor to deal with preparing LPAs and hear comments such as:
“I can do it online myself or buy a kit and I’ll only need to pay £82 for the application to register” or “why should I pay you when it just a form filling exercise”.
These are sensible questions that a specialist who advocates client investing their time and money in for their advice should be able to provide a compelling and logical answer to. The intention here is to highlight the value and benefits of investing in specialist, accredited and regulated legal advice at the outset, with the return being the confidence of obtaining an effective and personalised legal document if or when the need to use it arises and, importantly, no nasty or expensive surprises!
While there is an element of “form filling”, what you decide to put in the forms has significant consequences. If it is not drafted in a way that is fit for the individual’s circumstances, wishes and preferences it can have dire consequences – the exact opposite outcome that was intended.
A well-considered and drafted LPA should provide “peace of mind” that suitable arrangements are in place in advance of an unforeseen health crisis or the potential impairments commonly experienced in later life.
The Office of the Public Guardian (OPG) maintains the Register of Attorney appointments and is ultimately responsible for deciding if an LPA sent in for registration can be registered. The OPG itself has identified a number of common errors and risks of do-it-yourself LPAs. So, is doing it yourself really the best way to complete them?
We don’t expect you to take just our word based on our years of experience. We are solicitors who are accredited by Solicitors for the Elderly (SFE) and they have undertaken research to highlight the dangers and problems that have arisen with DIY or unregulated drafted LPAs.
It is only once a completed LPA is registered with the OPG that it can be discovered that a DIY document is not as legally robust as was originally intended. So you won’t necessarily immediately know there is a problem created by a DIY LPA or one prepared an unregulated advisor. As mentioned, the process is often referred to as ‘form filling’ when, in reality, the forms can be much more complicated to complete. How can you be expected to “know what you don’t know” or be aware of “what your advisor doesn’t know”?
One key benefit from obtaining advice from an experienced, accredited and regulated specialist solicitor is that we both advise and prepare LPAs but also are appointed as Professional Attorneys. As such, we know first hand what it is important to have in an LPA in order to be effective when supporting and managing someone and their legal, financial and care needs. It’s not just “theory” for us but “practice” and our “day to day experience”.
Much will depend on what the Donor (the person granting the power to the Attorneys) wants to achieve. For example, what decisions the Donor wants the Attorney to be able to make on their behalf and whether they have specific views on how their assets are managed or how decisions are taken.
Even though the OPG provides some guidance to complete the forms, it can be easy to make a mistake. That mistake may not be identified until later. Mistakes highlighted by the OPG can mean the LPA is not registered without some ‘corrective action’. This could mean that a further payment is due to the OPG by way of a repeat application fees. Where a whole new document is needed the entire process will need to start again, which can be particularly challenging if the document is being prepared at a time when capacity of the Donor fluctuates. At this point you may need to engage a solicitor to unravel the effect of a document that has been incorrectly drafted.
It is also worth noting that mistakes can, and do, get through the OPG checking system. Information such as the spelling of a name or a date of birth being incorrectly noted can mean an OPG registered LPA would be rejected by the bank, pension provider or medical professional even after it has been registered. It is not the responsibility of the OPG to check the spelling of names, addresses or dates of birth. These errors can mean further steps are needed to either ensure the document can be used or a new document may be needed. Again, you may need specialist advice in these circumstances.
Where something has gone wrong with a DIY document, attempting to sort out the mistake can not only be expensive (it can be more than the original cost of instructing a solicitor to prepare the documents) but it can also be stressful and time-consuming.
Remember, this may all be happening at a crucial time when the document may be needed as soon as possible to assist with decision making or having access to bank accounts to assist someone with their finances, perhaps to pay for care services being provided. Where the capacity of the Donor may be fluctuating or deteriorating, it may not be possible to obtain a further LPA and you have to embark on an application to the Court of Protection for a Deputyship Order.
Another point of concern is where the Donor of the LPA can more easily become the victim of fraud or coercion where a DIY document is used. Where a legal professional is instructed to create the document, they also act as an important safeguard in the role as ‘Certificate Provider’.
The Certificate Provider is an independent person who is able to assess the Donor’s capacity to understand the nature and effect of preparing LPAs. Their removal from the process can lead to an LPA being falsified or a vulnerable person being encouraged to sign a legal document that they do not fully understand.
From a drafting perspective, with DIY documents there is also a risk that the Donor does not get to adequately express their instructions or preferences around certain decisions that may need to be taken in the future by their Attorneys. With a DIY document they may not be aware that they can set out certain information within the power.
For an individual thinking about someone else making decisions on their behalf about their bank accounts, or how they should be cared for and end of life treatment it can be very overwhelming, particularly if the need to consider LPAs has been the result of a diagnosis (such as dementia) or following an incident (such as a brain injury or stroke). There are clearly important factors to consider and take into account in the preparation process. An element of sensitivity and adequate time must be given to the person so that they fully understand the implications of the LPAs.
A vital part of a solicitor’s role is to provide options and choice which the person can then consider in light of their wishes and feelings to then provide instructions as to how the document should be drafted. For example, through our accreditation with Solicitors for the Elderly we have over 50 precedent clauses that we can explore with our clients as to what best meets their wishes, preferences and priorities.
Without specialist support it would be very easy for someone to create an LPA or be encouraged/coerced to create one that does not accurately reflect the way in which they would like their financial affairs or personal welfare to be managed. By using a DIY document the person may be inadvertently opening themselves up to the risk of fraud and financial abuse.
There are many people for who these risks are considerable, particularly if their financial affairs are complex or they lack confidence with legal processes.
It can be very upsetting for a person to think about what may happen to them if they are unable to make their own decisions in relation to the management of their property and finances or where they may be unable to make decisions about their healthcare or medical treatment.
If they do not fully understand the capabilities of the LPA document and the information it can contain to support them and guide their Attorneys they may end up with at best, a badly drafted LPA and at worst, an invalid document.