The Hidden Cost of DIY Lasting Powers of Attorney

Posted on 03 Jan 2017

A Lasting Power of Attorney is a powerful legal document, enabling someone to appoint trusted individuals to make decisions on their behalf in relation to finances or health and welfare. The Attorneys’ authority to make these decisions lasts after someone has lost mental capacity. At that stage, of course, it is too late for that person to change the details on the Lasting Power of Attorney document or put right any mistakes.

By their very nature, Lasting Powers of Attorney are lengthy and somewhat complex documents. In recent times, the government have shortened the length of Lasting Power of Attorney documents, simplified the process for setting these up and set up an online Lasting Power of Attorney tool. All of this is with the aim of allowing people to create the documents without the need for professional advice from a Solicitor.

However, a new report published by a coalition of organisations led by Solicitors For The Elderly, warns that anyone creating a Lasting Power of Attorney without taking specialist legal advice faces a significantly higher risk of being left with an ineffective legal document, incurring additional application fees and even becoming a victim of fraud or coercion.

During a study conducted for the report, participants were invited to create Lasting Powers of Attorney using the Office of the Public Guardian’s online tool and other “DIY” methods. The study revealed that:-

• Some of the forms did not accurately express the way in which participants would want their affairs and welfare to be handled in the future;
• Documents made using DIY methods were more likely to contain elementary mistakes, rendering them invalid and potentially requiring additional application fees;
• Following consultation with a Solicitor, most participants made significant changes to the contents of the Lasting Powers of Attorney, particularly regarding how and by whom their affairs were to be managed.

Our increased longevity, coupled with the prevalence of dementia has led to society becoming more aware of the effect of loss of mental capacity and a greater number of Lasting Powers of Attorney are being created than ever before. The government’s response through the Office of the Public Guardian is to encourage the making of Lasting Powers of Attorney but without endorsing a process of obtaining legal advice.

The Office of the Public Guardian are actively trying to convince more people to apply for Lasting Powers of Attorney online, having set a target for the service to comprise 30% of all applications from April 2016 to March 2017. In their latest annual report, the Office of the Public Guardian even admits they are willing to take “risks” in striking a balance between “empowering and safeguarding”.

The Office of the Public Guardian already receive over 1,000 calls to their contact centres every day, which is surely symptomatic of the complexities of setting up and registering Lasting Powers of Attorney.

The report “the hidden costs of DIY LPAs” commissioned by Solicitors for the Elderly and four other organisations who support older people, seeks to challenge the public’s perception that the government’s encouragement of ‘do it yourself’ legal arrangements, does not mean these are the most sensible or risk free courses of action.

Choice is undoubtedly a good thing and having a number of different ways to create Lasting Powers of Attorney widens the availability of these documents.

For some people, the DIY method is the most appropriate but an informed decision should be made in every case, taking into account the complexity of the individual’s circumstances, the complexity of the Lasting Power of Attorney process, the costs and risks involved and the different options of obtaining support or professional advice for these documents.

By Siân Thompson – Solicitor in our Llandudno Office who specialises in matters of Probate Law such as Wills, Trusts & Estates. She is a court-appointed Deputy for clients under the Court of Protection and also acts as a professional trustee and attorney, as well as being STEP qualified and a full member of Solicitors for the Elderly.