Always use a Legal Professional for your LPA
by Bev Chase, Senior Associate Legal Executive
Are you or a member of your family are at risk of losing capacity?
If so one of the best ways to stay in control of your situation is by creating a Lasting Power of Attorney (LPA). This allows you to nominate someone to manage your affairs when you are no longer able to.
This is often preferable to a court-appointed deputy as you can choose who will be acting on your behalf and it is less expensive. There are different types of LPA’s which you can read about here https://www.fraserdawbarns.com/services/lasting-powers-attorney/
In the below article, Bev Chase, a Senior Associate Legal Executive at our Downham Market office discusses why it is always preferable to use a legal professional if you need to have an LPA made.
A former Court of Protection judge, Denzil Lush, claimed last year that he would prefer the creation of a Deputyship over a Lasting Power of Attorney (LPA). I find this to be a strange comment because a person at risk of losing capacity cannot choose a Deputy, these powers can only be arranged by the court after they are no longer deemed to have capacity.
It is true that LPAs are powerful and binding, but this is why undertaking an LPA should only be done under the guidance of a legal professional, not a reason that the system is flawed. A legal professional will have the training required to give sound advice and will also still be around in years to come. By choosing a professional the client will also have some comeback should the forms be incorrect or something goes wrong with the registration process whereas by using an unregulated practitioner there will be no comeback whatsoever.
Personally I would prefer a client to sign an LPA, providing they have capacity, than to go for a deputyship order not least because it is faster and less expensive. I want my clients to understand their decision; as such I always spend sufficient time with them explaining the risks that can arise when choosing the wrong attorney or from not making an LPA at all. I can also certify their forms when they are ready to make a decision on this.
An unregulated LPA provider will not be able to act as certificate provider, unless they have known the client for a period of two years or more. This means that the client would also have to involve their doctor or friends to do so and in my experience many people would rather keep their personal business private. By acting as certificate provider on these forms, I can also ensure that I see my client alone so I can be satisfied that they have full mental capacity and are not being coerced into signing the form against their will and I sign a statement to that effect.
Fraser Dawbarns securely store your original LPA and send you two certified copies, we also monitor how many copies have been sent out. If a non-professional has nowhere to store the original LPA, they would likely send it to the client for safe keeping. If the LPA is lost, this would result in additional and unnecessary costs to the client.
Unlike the Enduring Powers of Attorney they replaced, the LPA has to be registered in order to be legally binding. Registering the form doesn’t mean that the Donor has lost mental capacity as per the EPA, but I always recommend to my clients that it is better for the forms to be registered once they have been signed as they will then be available for immediate use should the Donor lose capacity. Considering the Office of the Public Guardian has at times taken 3 months to register LPAs, it is best to be prepared in case something urgent arises which the attorney needs to deal with.
I personally feel that Mr Lush’s comments were unfair towards LPAs, as with everything there is the risk of abuse, but the procedure for putting in place a LPA is considerably more straightforward than appointing a Deputy. If you feel this is something you may need in the next few years then by seeing a legal professional, you are limiting the opportunity for this to be misused.