Are there any risks creating a lasting power of attorney yourself?
A report from the Solicitors for the Elderly has focused on the risks of DIY Lasting Power of Attorney and Wills. With the ever growing power of the internet and the constant desire to make financial savings, the amount of DIY legal forms on offer has never been greater, so what are the risks and is the potential short-term financial benefit worth not seeking professional advice?
What is the risk of a DIY Lasting Power of Attorney?
1. Mistakes in the application
Whilst a DIY LPA might seem like a more cost effective method, if there are any mistakes made on the form it will be rejected and have to be resubmitted incurring a fee for reapplication (£41) or even a whole new application (£82 per document).
If mistakes are not found in the application but are present, the LPA could very well be rejected at the time when you need to use it. Banks, Utility providers, Doctors and other professionals have stringent checks and if a mistake was made in the drafting of the LPA then they will not accept it. This could cause significant delays and stress at the time when the LPA is designed to relieve just that. Also if the donor has lost mental capacity in the meantime another LPA cannot be created and a deputyship application to the Court of Protection will be the only remaining option.
2. The applicant (donor) doesn’t have full capacity
There is the potential that rushed applications could lead to abuse. A relative or friend appointed without being advised of the Attorneys duties under the Mental Capacity Act could act inappropriately.
If the applicant no longer has mental capacity, an LPA will no longer be an option. Instead, the Court of Protection will appoint a Deputy and that person may not be who was originally intended.
The role of a solicitor/legal advisor is not only to draft the document correctly but also to provide counsel and support the donor. Solicitors/legal advisors can also ensure the attorneys know their duties and the limits of their powers, e.g. making gifts or investing. There is a real danger with DIY LPA’s that a donor could be persuaded to sign something without fully realising the repercussions.
A valid LPA must include a certificate from an independent third party confirming that the donor understands the purpose of the LPA and the powers conferred by it. They also confirm no undue influence or fraud is being used to manipulate the donor into creating the LPA. If you instruct a solicitor then the solicitor will also provide the certificate and as they are professionals. Here at Grays Powers of Attorney, Sarah undertakes this role to ensure the LPA is robust and no fraud takes place.
If you are considering creating your own LPA, please do ask Sarah at Grays Powers of Attorney to check it through for you – see our “Check and Advice” service for further information, or call Sarah on 07877312472.