Creating a Lasting Power of Attorney (LPA) is more complex than many people realise. While it may seem like a straightforward process, there are numerous legal technicalities and potential pitfalls that can arise when attempting to do it without professional guidance.
In this collection of legal blogs, we present a series of case studies that illustrate some of the issues that clients faced when they tried to create their own LPAs and how we helped resolve these challenges.
Case Study 1 – David
David, a 68-year-old retiree, decided to set up an LPA for Property and Financial Affairs to ensure his affairs were managed if he became incapable. David chose his two children, Anna and Tom, as his attorneys. David wanted to make sure that his children had an equal say over his affairs in the future and that there would be no disagreements, so he opted for them to act "jointly and severally," believing this arrangement allowed for flexibility and would cover all scenarios. David prepared and registered the LPA online without seeking legal advice.
The Complexity
Unfortunately, a few years after the LPA was registered, Tom, one of the attorneys, passed away unexpectedly. Because the LPA required both attorneys to act together "jointly," Tom's death rendered the LPA invalid. David was left without a valid LPA, meaning that his affairs could no longer be managed effectively if he lost capacity.
The Solution
David approached us to assist with his Will and during our discussions it became clear that his current LPA was now unusable. We were able to explain the legal implications of the terms "jointly" and "jointly and severally" and helped David create a new LPA, clearly defining which decisions could be made jointly and which could be made jointly and severally. This time David also appointed a replacement attorney to step in if one of the primary attorneys could no longer act, ensuring that the LPA would remain valid even in the event of an attorney's death.
By trying to create the LPA himself, David inadvertently set up an arrangement that became invalid under unforeseen circumstances. A lawyer’s expertise ensured that the new LPA was structured correctly, preventing future complications and providing peace of mind that his affairs would be managed regardless of any changes in his attorneys' availability.
Conclusion
This case study highlights the importance of using a lawyer when creating a Lasting Power of Attorney. The legal complexities involved in appointing attorneys, drafting instructions, and ensuring the donor has sufficient capacity are often underestimated. A lawyer’s expertise can help avoid costly mistakes and ensure that your LPA remains valid, effective and provides peace of mind that your affairs will be managed according to your wishes.
Contact us
If you or a friend/family member are looking to make a Lasting Power of Attorney, and would like to make an appointment to see one of our lawyers, please contact our enquiries team by email at privateclient@baker-law.co.uk or telephone 01252 733 770 and ask to speak to the Private Client team about Lasting Powers of Attorney. We will be happy to provide details of our fees and procedure and arrange an appointment to meet to take instructions.
Comments