Why Use a Solicitor When Making a Lasting Power of Attorney?

Recent reforms have modernised the Lasting Power of Attorney (LPA) process, with the government introducing greater use of digital services with the intention to make LPAs easier to create, reduce administrative errors and strengthen safeguards against fraud. Whilst these changes have made the process more accessible, the legal and practical decisions involved in creating an LPA remain just as important. The forms may be easier to complete, but ensuring the document is effective, appropriate and tailored to your circumstances still requires careful consideration.

An LPA is one of the most important legal documents you will ever sign. It allows trusted individuals to make decisions on your behalf should you lose the capacity to do so yourself. For that reason, many people continue to seek professional legal advice to ensure everything is prepared correctly from the outset.

Avoiding Mistakes and Delays

One of the most common reasons LPAs are delayed or rejected is because of errors in the signing process. There is a prescribed order in which an LPA must be signed, and mistakes can cause significant delays. Seemingly minor issues, such as incorrect witnessing arrangements or amendments that have not been properly initialled, can result in the Office of the Public Guardian (OPG) rejecting the application. A solicitor can guide you through the signing requirements, ensuring:

• The document is signed in the correct order.
• Any amendments are dealt with properly.
• Appropriate witnesses are used.
• The application is completed accurately before submission.

This significantly reduces the risk of errors, delays and potential rejection.

Expert Guidance on Choosing Attorneys

Choosing who should act as your attorney is often one of the most difficult aspects of preparing an LPA. Whilst family members may seem the obvious choice, there can be important considerations around availability, capability, family dynamics and potential conflicts.

An experienced solicitor can discuss your circumstances, explain the responsibilities of attorneys and help you determine who would be the most suitable individuals to appoint. They can also advise on whether replacement attorneys should be appointed to provide additional protection should your original attorneys be unable to act.

The Importance of the Certificate Provider

Every LPA requires a certificate provider. Their role is to confirm that:

• The donor understands the purpose and effect of the LPA.
• The donor has the mental capacity to make the LPA.
• The donor is making the LPA voluntarily.
• There is no evidence of undue influence, pressure or fraud.

Solicitors can act as certificate providers and provide an independent safeguard. Through discussions with the donor, they can ensure that the document genuinely reflects the donor’s wishes and provide valuable peace of mind for all involved. Where there are concerns regarding capacity, a solicitor can also signpost clients to appropriate professionals who can undertake formal capacity assessments, if required.

Tailored Advice for Your Family and Financial Circumstances

No two families are the same. Whilst online systems provide standard forms, they cannot provide tailored legal advice. A solicitor can help ensure that your LPA reflects your individual circumstances and future intentions. Professional advice becomes particularly important where there are:

• Blended families.
• Family disagreements.
• Vulnerable beneficiaries.
• Business interests.
• Significant assets.

Careful drafting and bespoke advice can help minimise the risk of misunderstandings and disputes later on.

Advice on Attorney Appointment Provisions

The way attorneys are appointed can have significant consequences. For example, attorneys can be appointed to act:

• Jointly.
• Jointly and severally.
• In a combination of both ways for specific decisions.

Each option has advantages and disadvantages. A solicitor can explain the implications of each approach and help you choose the arrangement that best suits your circumstances.

Preferences, Instructions and Letters of Wishes

Many clients are unaware of the distinction between preferences and instructions within an LPA.

• Preferences provide guidance to attorneys about how you would like decisions to be made. They are not legally binding but can be extremely helpful.
• Instructions, on the other hand, are legally binding and must be followed. Poorly drafted instructions can create practical difficulties and, in some cases, may prevent attorneys from acting effectively.

A solicitor can advise on what should be included in the LPA itself and whether certain wishes may be better recorded in a separate Letter of Wishes. This can provide greater flexibility, as a Letter of Wishes can be updated more easily as circumstances change. Professional drafting also helps ensure that wording is clear, practical and acceptable to the OPG, reducing the risk of delays or registration issues.

The Value of End-to-End Support

Preparing an LPA is not simply about completing a form. It involves careful consideration, legal advice and ensuring all requirements are met before the application is submitted.

A solicitor provides support from start to finish, checking the document thoroughly before registration and helping to avoid unnecessary delays at what can already be a lengthy registration process.

In addition, solicitors maintain detailed file notes and records of meetings and advice provided. If concerns or disputes arise in the future, this professional paper trail can prove invaluable evidence that the donor understood the document and entered into it freely.

Peace of Mind for You and Your Family

Using a solicitor provides reassurance that your LPA has been prepared correctly, reflects your wishes, complies with legal requirements and fits within your wider estate planning. Most importantly, it provides peace of mind that should the document ever need to be relied upon, it will work exactly as intended for you, your family and those you trust most.