07 July 2021
Lasting Powers of Attorney - why use a solicitor?
Lasting Powers of Attorney (LPAs) are important documents that can confer considerable powers to your attorneys. LPAs for health and welfare can cover decisions, after you have lost mental capacity, ranging from where you might live and your daily routine through to life sustaining treatment decisions. LPAs for property and finances can cover a wide range of financial decisions, such as managing your bank accounts or selling your home.
Although it is possible to draft LPAs yourself, given the significance of the documents, it is important to get them right. We would recommend using a solicitor to help guide you through the process and make sure that the finished document does what you intended. Our private client team can assist with the making and registration of LPAs, including the following common areas of confusion:
- How to appoint attorneys
An LPA can appoint both primary and replacement attorneys. Where the LPA appoints more than one attorney to act at the same time, a decision needs to be made about how they are to act: either jointly or jointly and severally. We can discuss the options and explain the implications for each type of appointment to make sure that your wishes translate into the document.
- Preference and instructions
LPAs can include preferences, which are non-binding wishes, and instructions, which are binding on attorneys. We can advise on any specific instructions that need to be included for your individual circumstances. It is important to be careful when drafting preferences and instructions as overly complicated or poorly drafted preferences and instructions can make the LPA difficult to use.
LPAs must be registered before they can be used, and registration takes around 15 weeks. However, LPAs have to be signed in a specific order. If they are not signed in the correct order, they can be rejected from registration by the Office of the Public Guardian. The error would then need to be corrected, which may cause a significant delay to the registration process. This could have a serious impact if the person making the LPA is losing their mental capacity. We can ensure that the document is correctly signed before submission to the Office of the Public Guardian to make the registration process as smooth as possible.
- Certificate provider
A certificate provider is required to sign the LPA to confirm that the person making it understands what they are doing and that no one is forcing them to do it. While you do not have to use a professional as a certificate provider, we have knowledge of the correct legal test for mental capacity which can help to demonstrate that the LPA has been correctly completed. We can also identify situations where a medical professional would be best placed to act.
- Business LPAs
It is possible to make more than one LPA for property and finances. This is particularly useful for dealing with businesses. We can advise whether a business LPA is needed, and can liaise with our corporate team to make sure that your business can continue to flourish if you lose mental capacity.