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Before we start, this is not intended to scaremonger or frighten anyone into using a legal professional to prepare Lasting Powers of Attorney but should merely act as a warning to those looking to save money by preparing their own or their family member’s Lasting Powers of Attorney.

Using a professional to prepare Lasting Powers of Attorney can be expensive and there are a number of platforms that allow you to either download the available forms for free (such as the Government website) or for a small fee (such as through various charitable companies and websites) which provide little to no advice regarding the application forms.

In most of the free and cheaper options you will receive little if any legal advice as to the ramifications of making a mistake in the application process for example; failing to select the correct options, failing to include necessary wording, or including incorrect statements that lead to the application being rejected by the Office of the Public Guardian.

For many people they will have no problem with the application process and it is not until the LPA is required to be used that it is found that it had been incorrectly set up for the purpose it was intended for.

Here are some of the pitfalls that we have seen regarding DIY Lasting Powers of Attorney;

Failing To Include Provision For Discretionary Fund Management

It is now standard practice to include a clause in your Lasting Power of Attorney for Property & Financial Affairs relating to the use of Discretionary Fund Management. Without such a clause your Attorneys will be unable to delegate their power to a financial advisor, bank or wealth manager to make decisions on a day to day basis relating to any investments held in a discretionary fund.

Whilst this may not affect you at this moment in time, it may be required in the future if you move into residential care and your house is sold with the proceeds of sale held in a discretionary fund.

Signing In The Correct Order

There is a strict procedure that must be followed in signing and dating the Lasting Powers of Attorney, if the application is not signing in accordance with the correct procedure it may be rejected by the Office of the Public Guardian and returned to the applicant for re-submission. This will add to the already long timescale to register the Lasting Power of Attorney (12 weeks) and will often incur a resubmission fee of (currently £41.00).

Appointing Your Attorneys Jointly/Jointly And Severally

An important note about appointing your Attorneys acting Jointly is stated on the application itself yet many fail to understand the importance;

“Be careful – if one attorney dies or can no longer act, none of your attorneys will be able to make any of the decisions you’ve said should be made jointly. Your LPA will stop working for those decisions unless you appoint at least one replacement attorney (in section 4). Your original attorneys will still be able to make any of the other decisions alongside your replacement attorneys.”

If you have appointed more than one Attorney and have selected that they must act Jointly, the LPA cannot be used if any Attorney fails to sign, for any reason including death.

Valid Once Registered/Valid Once Lost Capacity

This is often misunderstood despite the warning stated on the application with regards to selecting the option for the LPA to be valid only when you no longer have mental capacity;

“Be careful – this can make your LPA a lot less useful. Your attorneys might be asked to prove you do not have mental capacity each time they try to use this LPA.”

In the event that you have lost the ability to sign a document through a physical injury, or become physically unable to deal with a particular matter, your Attorney(s) will not be able to use the Lasting Power of Attorney if you still have Mental Capacity.

Being Unaware Of Registration Fee Remission Or Exemptions

In order to register the Lasting Powers of Attorney a registration fee must be paid to the Office of the Public Guardian of £82 per application. You may be entitled to an exemption of these fees or a reduced fee depending on your circumstances either through certain means-tested benefits, through your financial circumstances or by receiving Universal Credit.

We set fixed fee costs for the preparation of Lasting Powers of Attorney as published on our website, for more information about Lasting Powers of Attorney and for a free initial appointment please contact our Private Client team at Royston on 01763 241 261 or contact Toby Pilcher by email; This email address is being protected from spambots. You need JavaScript enabled to view it.