Do you need a solicitor for Power of Attorney?

Specialist Court of Protection solicitor, Vanessa Santomauro, discusses the advantages of using a solicitor to make a Lasting Power of Attorney.

On occasions clients have told me that they have Googled ‘making Lasting Powers of Attorney’, or that their friends have made them themselves, or that perhaps the lady in the coffee shop will help them prepare Lasting Powers of Attorney, because ‘it’s not that difficult’.

Why use a solicitor to make Lasting Powers of Attorney (LPAs)?

It is possible to make a Lasting Power of Attorney yourself so why would you instruct a solicitor instead?

Well, simply put, a Lasting Power of Attorney is a legal document. The nature, implications and resulting risks of creating Lasting Powers of Attorney are matters of which one should be informed before simply going ahead for convenience.

Those who choose to ‘do it themselves’ in the main do so as a cheaper method short term but there are of course associated risks of not seeking advice with implications longer term.
Risk associated with homemade Lasting Powers of Attorney include:

• The LPA may not be legally robust; when mistakes are made this can result in unforeseen costs (if the forms are not completed in the correct way they can be rejected by the Office of the Public Guardian, often referred to as OPG, with a further charge being made for re-submission of the application).
• Sometimes, even when the LPA has been granted and passed the OPG’s checking system, an LPA may be rejected at some point in the future by an institution e.g. bank, utility company, doctors. Rectifying mistakes once an LPA has been registered can be time consuming and again incur costs.
• There is the risk that the person making the LPA does not adequately consider and express their wishes and preferences about what they would want to happen in the event of losing capacity. This may result in the affairs and welfare being handled in a way which would contravene the wishes of the individual concerned and also inadvertently open the individual up to the risk of fraud or financial abuse.
• The appointment of a sole attorney failing, such that the individual then has no one to act for them.
• A joint appointment of attorneys failing because advice was not sought, and so the LPA ceasing to have validity on the death or incapacity of one of those attorneys.

The risk involved is higher perhaps for those who either have complex affairs or those who are most vulnerable.

Instructing a solicitor for Power of Attorney means the application will be completed correctly and that there is no scope for misunderstanding on the part of the individual (known as the ‘donor’) making the LPA. It is also a safeguard against fraud and coercion as the solicitor will ensure the donor is fully aware of and comfortable with what they are signing.

An LPA is a deed and so cannot be amended once it has been registered by the OPG. To change an LPA would require the revocation (cancellation) of the LPA and for the process of making an LPA to be started all over again.

If you are considering making a Lasting Power of Attorney, one of our specialist Powers of Attorney solicitors can offer guidance and ensure all items that you wish to be covered in the event of incapacity, are done so, leaving you with peace of mind.