For many, we plan for our future through the making of a Will, which essentially makes clear your wishes for your estate when you die. However, oftentimes very little consideration is given to the planning for the future for your needs when you are living, and importantly who would legally step in and take care of your matters should you be unable to. This is where a Lasting Powers of Attorney is needed.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (also referred to as an LPA) is a legal document that allows you to appoint one or more people you know and trust (known as attorneys) to help you make decisions on your behalf. LPAs are not just for old age, they can also be used if you were to have a bad accident or become critically ill.
There are two types of LPA: financial and property and health and welfare. A financial and property LPA is used to allow your attorneys to make decisions for you about your money and property, for example managing your bank account or selling your home and a health and welfare LPA can give your attorneys the power to make decisions about where you might live or medical care.
The website This Is Money states that “Lasting Power of Attorney is a legal failsafe for people who can no longer fend for themselves” and “Without an LPA, families can find themselves locked out of an ailing loved one’s finances and forced to apply for deputyship. This involves a complicated court process and fees running into many thousands of pounds”.
So why do I need a solicitor to draft my LPAs?
- Experience
Firstly, when you instruct a professional, you are instructing someone with experience in this area. The law and practice surrounding LPAs can be daunting as it is constantly changing and developing. By instructing a solicitor, you will have 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. - Advice specific to you
Secondly, your solicitor will be available to answer any questions you have as and 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 and your family.
The idea of an LPA is to give you control over what happens to you if you cannot make your own decisions – perhaps you want to live close to your children or you want to only invest in sustainable and ethical companies. Whatever your wishes, a solicitor will be able to discuss your requirements with you and will tailor your LPA to you according to your circumstances, wishes and preferences.
A carefully drafted LPA will help protect you in the future. It is important to future proof your LPA as much as possible as you cannot amend them once registered. Your solicitor will talk through the options with you and a carefully drafted LPA will ensure that you save both time and money in the future and ensured that all your wishes are adhered to. - Avoiding ErrorsThirdly, the process of obtaining an LPA is very precise and particular. Often applications are returned to applicants due to practical errors, such as signing the application in the wrong order. The Office of the Public Guardian (OPG) have reported that 15% of the applications they receive have mistakes in them and are therefore rejected.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, rendering the LPA useless. This is not only expensive and time-consuming, but it may also be impossible to rectify again if the person granting the LPA no longer has capacity.By instructing a solicitor, the complicated and very precise process can be sped up as they know how to proceed and get it right the first time.
Furthermore, a badly drafted LPA can actually restrict your attorney’s powers. It is important to not include any instructions that contradict with 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 legally valid and how best to word them. - Protection from fraud
Instructing a solicitor also means you can be confident that you and your assets are protected – ‘DIY’ LPAs can potentially leave you vulnerable to fraud, coercion, and financial abuse. By instructing a solicitor, they also act as an important safeguard by fulfilling their role as an independent ‘Certificate Provider’ who will confirm that your wishes are being met, there is no undue influence, and you are not being persuaded to sign something you do not fully understand.
What happens if I 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. It is a common misconception that your spouse or next of kin can make financial decisions on your behalf, however this is not the case – your next of kin or spouse have no legal responsibilities or authority to make any decisions on your behalf. For example, if you are required to move into a residential care home, they cannot access your bank accounts to pay your care fees.
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 and friends will have to apply to the Court of Protection to obtain deputyship. A deputy is someone who is appointed by Court of Protection, and they can make decisions on your behalf, when you do not have the capacity to make decisions yourself. An application to become a deputy is a long procedure that requires several paper forms and can take several months (if not longer) to complete as a result of the Court’s backlogs. It is important to know that deputyship does not always grant your deputies full powers to deal with your financial affairs and you may have to return to the Court to ask for further permission, such as permission to sell the property, which can prolong the application further. Prevention is better than a cure, and it is important to make an LPA to avoid an application to the Court of Protection for deputyship, which can cause further stress, both financially and mentally for you and your loved ones.
There are registration fees of £82 per LPA, which go directly to the Office of the Public Guardian – you may be eligible to apply for a reduction if you earn less than £12,000 or an exemption if you are on certain benefits. In addition to these costs, there are the legal costs you will pay your solicitor. At Thornton Jones Solicitors our fees for an LPA start at £400 VAT. For a full list of our latest prices check our fees here.
Consulting a solicitor is the best way to make sure a lasting power of attorney is properly drafted and registered, and your wishes are adhered to. Whilst a DIY Lasting Powers of Attorney is possible, there are significant risks of doing so and any mistakes can be costly to rectify and may even be impossible if the person granting the LPA no longer has capacity. Using a solicitor to make your LPA will ensure that your wishes and adhered to and you save both time and money in the future.
A Lasting Power of Attorney and a Will are two very separate matters – an LPA helps your attorneys to manage your financial assets and personal affairs whilst you are living. When you die, any powers that your LPA grants to your attorneys will end on your death. A Will is a very separate document and only comes into effect when you die. Whilst you are alive, your attorneys cannot make any changes or override your Will – they can only make decisions within the scope of powers agreed upon in the LPA.
Overall, instructing a solicitor will give you peace of mind that your LPA has been correctly drafted, making sure your wishes and preferences are all met, both now and in the future.
If you want to discuss Lasting Power of Attorney in more detail and to determine whether you should have one then please call us at any of our offices and we will be very happy to help.
Call our Wakefield office on 01924 290 029 Call our Garforth office on 0113 246 4423 Call our Sherburn in Elmet office on 01977 350 500 Call our Mapplewell office on 01226 339 009 Call our Ossett office on 01924 586 466
About Molly Sutherland
Molly joined Thornton Jones Solicitors in March 2023 after completing her training contract at Levi’s Solicitors. At time of writing, she is awaiting her Legal Practice Course results which will certify her as a fully qualified solicitor.
Molly studied her Law Degree and LPC at Leeds Beckett and an LLM Masters (Master of Laws) at Leeds University. She joins our Private Client team here at Thornton Jones and brings her experience of working in Private Client and Litigation departments since 2018.
Outside of work Molly admits to her free time being taken up by her Dachshund puppy who causes lots of trouble and is a travelling partner (almost) wherever Molly goes. When not tending to her puppy’s needs, Molly enjoys spending time with friends and family.
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The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.
