Member Article

Lasting Power of Attorney goes online – is it a false economy?

Since 1 April 2013 individuals have been able go online to create a lasting power of attorney (LPA) which gives trusted people the authority to make decisions on their behalf, in the case of illness or accident.

Alex Guy, specialist wills, probate and power of attorney associate solicitor at hlw Keeble Hawson, Sheffield, is a member of the Court of Protection Deputy Panel. This is the legal authority that determines the outcome of disputes and appoints deputies if suspected financial abuse has taken place or the LPA has been drawn up incorrectly. As Alex explains many who initiate an LPA online are unaware of the implications and the risks involved of doing it themselves.

People should consider who might look after their financial affairs or health and welfare in the worst case scenario. Too many people wait until their capacity is open to question - which is often too late. Therefore ideally you should do it before capacity becomes an issue and ensure you get the appropriate advice. The only time you will know that an LPA has not been drawn up properly is if it needs to be activated.

Creating an LPA is the only legal way to state who you wish to look after your affairs if you lose mental capacity. It has to be registered to be valid and can only be signed whilst the person has their full judgment.

You may think that completing the relevant form is straightforward but this is a legal document and the smallest error will render the LPA invalid. In which event if the donor becomes incapacitated, applying to the Court of Protection for a deputy to be appointed is lengthy and will incur fees of £400 just to submit the application.

AgeUK’s own figures estimate 5.2 million elderly people have never been online. Many of these people may look to family or friends to help them access and understand the long and complex notes and guidance covering an LPA but they could be placing themselves in a vulnerable position if they hand this responsibility to an third party.

As a panel deputy for the Court of Protection I investigated a financial abuse case involving a mother with an illness that affected her memory. Her daughter created an LPA for her, sold the mother’s house and many of her possessions and placed her mother in a care home. Social services were fully involved in the care side of matters and quickly realised what her daughter had done. Significant costs were incurred in resolving the matter.

Face to face contact with an appropriately qualified legal professional ensures that the donor fully understands the arrangements that he or she is entering into and that the appropriate safeguards are in place to protect their best interests, should they lose capacity.

When would you activate Lasting Power of Attorney?

• An LPA can be activated through choice when a person still has mental capacity but is going abroad or is housebound through physical incapacity
• An LPA needs to be registered with the Office of the Public Guardian before it can be used
• The LPA needs to be lodged with banks and utility providers and the attorney will need to have ID checks
• If a donor has a correctly drawn up LPA in place and becomes incapacitated the appointed attorney will have the legal authority to access funds to pay for care home fees and any other requirements.

This was posted in Bdaily's Members' News section by Alex Guy .