Lasting Powers of Attorney (LPA) allow you to appoint attorneys, people you trust implicitly, to deal with your financial affairs and health and welfare affairs during your lifetime.

The Office of the Public Guardian expect to register 1 million LPA’s in 2023.

Is it easier to prepare them myself?

Making LPA’s can be a cumbersome process due to the amount of paperwork involved. If a mistake is made within the LPA and this has then be submitted to the Office of the Public Guardian, there is a risk that the LPA will not be registered. This can have a detrimental impact on the donor if anything happened to the donor prior to the LPA being registered for example, if they had since lost capacity. In this situation, the donor would be treated as not having LPA’s in place and there loved ones would need to make an application to the Court of Protection to apply to become deputies instead. This is a lengthy and time consuming process.  

How are they safeguarded?

When making LPA’s it is extremely important that you trust your attorneys implicitly. At the moment the Office of the Public Guardian do not have any powers to investigate those making an application for the LPA’s and to stop registration if they have any concerns. They are reliant on third parties to raise concerns. The Office of the Public Guardian have confirmed that it is quite common for certificate providers to sign the LPA’s and then raise concerns with the Office of the Public Guardian when the LPA’s have then been sent of for registration. Often Certificate Providers are friends or neighbours who would not feel comfortable raising their concerns with the donor themselves.

In the case of Public Guardian v RI [2022] EWCOP 22 (07 June 2022) the Court of Protection determined that the donor did not have sufficient capacity when he made his Lasting Powers of Attorney 12 years ago and, therefore, the Office of the Public Guardian were ordered to cancel them.

This case highlights the importance of ensuring that where a donor may lack the capacity to prepare a Lasting Power of Attorney extra precautions are taken. In order to execute a Power of Attorney, a ‘Certificate Provider’ will need to sign the LPA to confirm that they are happy that the donor has the necessary capacity to make the LPA. The Certificate Provider can be someone who has known you for at least 2 years however, it is advised, especially where capacity is a concern, that this Certificate Provider is a solicitor or a medical professional. In this case, the Certificate Provider could not be traced and, therefore, this meant that the capacity of the donor at the time could not be determined.

It is important that you are fully advised on the implications of putting in place LPA’s and the necessary steps are taken to ensure you have capacity and mitigate any challenges a relative may wish to make against the validity of your Lasting Power of Attorney. Whilst LPA’s can be prepared by the donor, if it was ever questioned in the future it would be a challenge to demonstrate the donor did in fact have the required capacity at the time the LPA was prepared and signed.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

Kate Garraway’s heart-breaking story of her husband Derek’s year-long battle with Covid has been made even more complicated by the lack of legal protection she and Derek had in place. Kate was unable to access funds to manage her husband’s care or refinance her mortgage. She didn’t even have the legal right to see his medical notes, owing to data protection. 

Research by SFE, shows that 65% of us think our next-of-kin will make medical and care decisions for us if we are no longer able to. In reality, this isn’t the case unless a Health & Welfare Lasting Power of Attorney is in place. Whilst there has been a rise in the number of enquiries made about Lasting Power of Attorneys (LPAs) during the pandemic, only 22% of people in the UK actually have one. 

What is a LPA?

There are two types of Lasting Power of Attorney;

• Property & Financial Affairs – covering decisions such as buying and selling property, investing money and managing investments, receiving income and paying liabilities; and
• Health & Welfare – covering decisions such as medical care you receive, where you live, who visits you, day to day care such as social activities, and what you eat. It also covers decisions in relation to life sustaining treatment.

They are legally binding documents, registered by the Office of the Public Guardian, used to protect your interests by nominating people you Trust to act on your behalf, should you become unable to make important decisions about your own welfare or financial decisions.

What if I lose capacity and I don’t have LPAs in place?

Your loved ones would need to begin a lengthy and costly application to the Court of Protection to apply for Deputyship over your finances. The Court of Protection must be satisfied that the appointed Deputy is in the individual’s best interests. When it comes to health and welfare matters it’s often much more difficult for a Deputy to be appointed. That said, there are certain scenarios where the Court of Protection require cases to be brought before them for a decision to be made.

Deputyship also imposes additional duties on the Deputy in terms of filing accounts and supervision from the Court of Protection.

How to avoid an application for Deputyship

To avoid this difficult kind of legal situation it’s important to utilise the expertise of a specialist lawyer to assist in putting in place Lasting Powers of Attorney and support those making these crucial, complex and difficult decisions. According to Which? 22,000 LPAs are rejected every year so it’s essential that you get your legal documents right.  

At Franklins, our expert Private Client team provide clear, practical advice in future planning. For further information Lasting Powers of Attorney, contact the team on 01908 660966 / 01604 828282 or email PrivateClient@franklins-sols.co.uk.