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 2 – Margaret
When creating an LPA, the donor can include specific instructions and preferences to guide the attorneys in their decision-making. However, without a proper understanding of the legal framework, these instructions can inadvertently become too restrictive or contradictory, limiting the effectiveness of the LPA.
Margaret, a 75-year-old widow, decided to set up an LPA for both Property and Financial Affairs and Health and Welfare. She wanted to ensure that her attorneys, her two daughters, Susan and Jane, followed her wishes closely. Margaret included detailed instructions in both LPAs, specifying numerous restrictions on her financial affairs and what medical treatments she would and would not accept, along with preferences on her day-to-day care. Confident in her ability to outline her wishes, Margaret completed the LPA without consulting a lawyer.
The Complexity
After Margaret suffered a sudden illness, rendering her unable to act for herself, Susan and Jane tried to use the LPA to make decisions about their mother’s care. However, the instructions Margaret had included were so detailed and specific that they left little room for flexibility. Many of the situations Margaret had envisioned did not align with the realities of her medical needs, and some of the restrictions contradicted medical advice. The care home and healthcare providers were reluctant to act on the LPA due to its restrictive nature, causing delays in Margaret's treatment and care.
The Solution
Susan and Jane sought the help of a lawyer to resolve the situation. The lawyer was able to advise the attorneys on how to act in their mother’s best interest in terms of her medical needs and the conflicting terms of the LPA.
Margaret’s attempt to outline her wishes without legal guidance resulted in confusion and delays at a time when quick decision-making was crucial.
Thankfully, Margaret recovered well from her illness and was able to make a new LPA. To address the earlier problems, the lawyer assisted in drafting the new LPA with broader, more flexible instructions that still reflected Margaret’s wishes but allowed her attorneys to adapt to unforeseen circumstances. Consulting a solicitor helped create an LPA that balanced her wishes with the flexibility needed for effective decision-making, ultimately ensuring her best interests were met in the future without unnecessary legal obstacles.
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 and provide 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.
This blog is provided for informational purposes only and does not constitute legal advice. Readers are encouraged to consult with a qualified lawyer for personalised guidance tailored to their individual circumstances.
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