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 3 – David
An LPA must be set up while the donor still has the mental capacity to understand the implications of the document. Failing to recognise when a person lacks this capacity can lead to severe complications, including the need to involve the Court of Protection.
Peter, an 82-year-old man diagnosed with early-stage dementia, wished to set up an LPA for both Health and Welfare and Property and Financial Affairs. His son Michael decided to assist him in creating the LPAs. Michael used online forms and guidance, believing he could handle the process himself without professional help. Unfortunately, Peter’s condition deteriorated more quickly than expected, and by the time they attempted to register the LPAs, questions were raised about Peter’s capacity to make the document.
The Complexity
Concerns were raised with the Office of the Public Guardian (OPG) surrounding Peter’s capacity to enter into an LPA, and as a result the LPAs were deemed invalid, and Michael was unable to act on his father’s behalf. This left Peter without any legal protection or representation for his financial and health affairs at a critical time, and Michael had no authority to manage his father’s assets or make care decisions. The family now faced the costly and time-consuming process of applying to the Court of Protection to be appointed as Peter's deputy, a process that could take several more months.
The Solution
Michael sought the assistance of a solicitor to navigate the Court of Protection process. The solicitor helped Michael prepare a detailed application to become Peter’s deputy, which included medical evidence and a robust case supporting Michael’s suitability for the role. Additionally, the solicitor provided guidance on managing Peter’s affairs in the interim and ensured that all necessary documentation was completed accurately to avoid further delays.
Attempting to set up an LPA without professional guidance led to significant challenges for Peter and his family when his capacity was questioned. Had a solicitor been involved from the beginning, they could have assessed Peter’s capacity at the appropriate time, provided necessary certifications, and advised on the correct procedure, avoiding the need for court involvement altogether. This case underscores the importance of seeking legal advice early in the estate planning process to prevent unnecessary complications and expenses.
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, ensure that your LPA remains valid and effective, 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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