Lasting Powers of Attorney: Do I need to make one?

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