A lasting power of attorney (LPA) lets you decide who you would like to make decisions for you if you lose mental capacity. It is possible for you to make a lasting power of attorney yourself but the forms that need to be completed are complicated so it is best to ask a lawyer to help you.

Rachel Saunders, Wills, Trusts and Probate Solicitor at Forrester Sylvester Mackett explains how to make a lasting power of attorney and highlights some of the things that can go wrong if you try to do it yourself.

How to make a lasting power of attorney

A lasting power of attorney must:

• be made by someone aged 18 or over who has mental capacity to understand what they are doing;
• be prepared using prescribed forms which request specific information and include a number of safeguards to prevent abuse;
• be accompanied by the required fee; and
• be registered with the Office of the Public Guardian before mental capacity is lost.

The procedure for making a lasting power of attorney may seem relatively straightforward but it is littered with traps for the unwary.   Making a mistake can be costly and result in your application for registration being rejected.  This can have serious consequences as the following scenarios show.

Scenario 1

Mr Brown is in the early stages of dementia.  He and his wife agree that it would be prudent for him to make a lasting power of attorney.  Mr Brown’s doctor assesses him as having the mental capacity to do this but warns him that he needs to do it quickly.  Mrs Brown decides to complete the paperwork herself but forgets to get it witnessed, and so it is rejected by the Office of the Public Guardian.  It takes Mrs Brown eight weeks to resubmit the application, by which time Mr Brown has lost mental capacity.  This means Mrs Brown can no longer register the lasting power of attorney and will instead have to apply to the Court of Protection for it to decide how Mr Brown’s affairs should be dealt with.  The fee she paid to the Office of the Public Guardian is non-refundable so she has lost this and will now have to pay more substantial fees to the court.

Scenario 2

Mr and Mrs Green prepare their own lasting powers of attorneys.  They appoint their four children to act and make it clear that they should be able to make decisions jointly or acting alone.  However, they also say that if their house needs to be sold this is a decision that can only be taken by all four children acting together. Although there is nothing wrong with including this sort of provision if it is worded as a preference, the way they have phrased it means that the lasting power of attorney they have created is invalid.  As a result, Mr and Mrs Green will have to create new powers of attorney and pay further registration fees.

Scenario 3

Mrs Grey completes her own lasting power of attorney.  She feels very strongly that two people should be appointed and that they should have to make all decisions together.  She is also mindful of the fact that if one of these people is unable to act for any reason she should have a third replacement attorney on standby just in case.  Thinking she has catered for every eventuality, Mrs Grey decides to appoint her son and daughter to act jointly and nominates a friend to act as a replacement attorney should the need arise.  The way she has completed the paperwork means that if one of her children is prevented from acting for her for any reason then the other child will be prevented from acting as well.  It will then fall to the replacement attorney to act alone, which is something Mrs Grey specifically does not want.

A solicitor can help you avoid the problems outlined in these scenarios by advising you on:

• who you should appoint to be your attorneys and making sure those you intend to appoint are willing and able to act and that they understand the duties and responsibilities they will be assuming;
• the different ways attorneys can be authorised to make decisions, including on their own, or jointly with others;
• the need to nominate replacement attorneys in case your original attorneys are unable to act;
• how your wishes ought to be expressed to ensure they cater for all eventualities and are capable of being carried out;
• any specific wording which may need to be included to enable funds held by banks and building societies to be managed on your behalf;
• whether a separate lasting power of attorney may be necessary to protect your business interests;
• whether there is anything about your personal circumstances which means that a lasting power of attorney may not offer you all the protection you need, such as where you have property or assets abroad;
• how a lasting power of attorney may be used where assets covered by the lasting power of attorney are owned jointly;
• the things you need to do to prevent your application for registration being rejected by the Office of the Public Guardian; and
• how to prevent the validity of your lasting power of attorney being challenged, such as arranging for a doctor to assess your mental capacity in the event of deteriorating mental health.

Your solicitor has a duty to act in your best interests and will also help you by:

• ensuring that you fully understand the aim and effect of the lasting power of attorney you are making; and
• ensuring that you are advised of any other steps you should consider taking to protect your position, such as making or revising your will or applying for any benefits you may be entitled to.

For a confidential discussion about lasting powers of attorney, or any of the issues raised in this article, including the drafting or revision of your will, please contact our Wills, Trusts and Probate Team.