Do I need a solicitor to get an LPA?
Lasting Powers of Attorney
You can prepare a Lasting Power of Attorney (LPA) yourself by obtaining the relevant forms online and filling out the information. However, much like a Will, this is an important legal document with many aspects that have the potential to go wrong and could result in the document not accurately reflecting your wishes.
A Property & Affairs LPA gives another person the legal right to manage your property and finances with your consent or if you become incapacitated. The Heath & Welfare LPA enable another person to make decisions regarding your health at times when you are unable to do so yourself (ie if you lose mental capacity). You can appoint more than one attorney or have the option to appoint replacement attorneys who will step in when you first named attorneys can no longer act for you.
The person making the LPA has to have full mental capacity to make the LPA. The document needs to be signed by someone as a “Certificate Provider” who will confirm that the person making the LPA has full mental capacity and they understand the implications of signing an LPA. A Certificate Provider can be a doctor, solicitor or someone you have known for 2 years (ie friend or neighbour).
Once the LPA has been signed by all the relevant parties (ie you, attorneys, replacement attorneys and certificate provider), your LPA has to be registered with the Office of the Public Guardian (OPG) before it can be used. There is a court fee of £82 per LPA and this is payable whether you use a solicitor or prepare the document yourself.
Points to consider
However, there are certain risks involved as the application for an LPA is a long document and there are many different options included within it. For example, you have the option to either appoint attorneys to act jointly or jointly and severally. If you appoint your attorneys to act “jointly” then they must agree on all decisions before taking action. Also if one of your attorneys die and they are appointed jointly, the other attorney will be unable to act alone and therefore may invalidate your LPAs.
However, if you appoint your attorneys to act “jointly and severally” then they can act independently of one another however they must keep each other informed of all decisions. This is useful if for example, if one attorney is on holiday and the other needs to make an urgent decision.
Another matter that arises when drafting an LPA yourself is that people often do not appoint replacement attorneys to act for them when their appointed attorneys are unable to act for them. This leads to situations where the attorney has lost mental capacity or has died and there is no one else who is legally able to act in their place. Furthermore, replacement attorneys are automatically appointed jointly. There you need to ensure you include an additional clause with the correct wording to appoint your replacement attorneys as jointly and severally (as mentioned above). If the incorrect wording for this clause is used and one of the replacement attorneys die, the LPA may become invalid.
LPAs are often rejected by the OPG due to not being signed by all the parties in the correct order. If this happens, the OPG will return the paperwork and request it to be redrafted, resigned or resubmitted. This causes delay and this can have a significant impact if the person making the LPA is losing mental capacity.
Moreover, if there is a question over someone’s mental capacity when making the LPA, it is preferable to use a solicitor to act as the certificate provider. A solicitor can assess whether the person making the LPA has the level of mental capacity to do. If a friend acts as a certificate provider, they may not have the level of expertise to assess mental capacity and could result in the LPA being contested in the future.
For the reasons listed above, it is important that an LPA is correctly drafted to ensure that it accurately reflects your wishes and is not rejected by the OPG. Our private client department are experts in drafting Lasting Powers of Attorney and would be more than happy to assist you with your application LPA that is required.