You can now go online to set up a Lasting Power of Attorney (LPA), making it easier and faster to start the process.
Having up-to-date LPAs in place is an essential part of your estate planning. No matter your age or state of health, the role of an LPA in safeguarding your future should not be underestimated.
What has always been an arduous paper-based system has gradually evolved with the rise of digitization. You can now prepare LPAs online for yourself. In this blog we look deeper at the process involved and the value of using a solicitor.
Preparing your Lasting Power of Attorney online
Once the LPA has been drafted, it will need to be registered with the Office of the Public Guardian (OPG) before it can be used. There is a registration fee of £82 per LPA. Currently, it takes the OPG 20 weeks to register an LPA (based on an error free application). The current online LPA application process requires the Donor (the person making the LPA) and their appointed Attorneys to provide a ‘wet signature’ on the documents, as well as requiring them to have their signatures witnessed.
In a bid to streamline the process, The Powers of Attorney Act 2023 received Royal Assent in September 2023. No timescales have been given as to when the changes will happen, but it is said to modernize the current system and will allow LPAs to be completed entirely online including registration (as is currently possible in Scotland).
Fraud and vulnerability
There is some concern around individuals using the online LPA tools without proper legal guidance as it does not properly safeguard vulnerable clients. This is particularly poignant as those who are expressing the need for an LPA usually do so when they know their health is deteriorating (this can be through old age or illnesses such as dementia).
The online tool may expose the Donor to fraud, or they may even experience an abuse of power from an Attorney. There could be certain elements on the online forms that are misunderstood – not just as a product of a Donor’s mental capabilities, but because consequences may not have been fully explained to the Donor. If the Donor does not have sufficient mental capacity to authorise someone to act as their attorney, then their LPA is not valid.
Risk of mistake
Other dangers of completing LPAs using the online tool is that if the forms are submitted containing mistakes, there is a risk that it will be registered incorrectly. When an LPA is registered wrong, there runs a high risk of them being rejected by financial institutions and medical professionals. In addition to being time consuming, further application fees are applied to rectify ineffective or impractical documentation.
If the OPG do require a new LPA to be completed and the Donor has lost capacity, the family will most likely have to apply to the Court of Protection for a deputyship order instead. This is a much more costly and lengthy process, and causes added stress at an already difficult time.
Benefits of advice
The participants of a recent study by The Association of Lifetime Lawyers [1] on the risks of DIY LPAs explained that they would feel more comfortable submitting the forms after seeking advice from a solicitor. More importantly, most of them made significant changes to the decisions expressed in their LPAs after reviewing it with a solicitor regarding how and by whom their affairs were managed. Receiving guidance from a legal adviser means they will be able to include specific provisions that the standard online version simply does not accommodate for.
An example of this is drafting a Business LPA. If you have a business, you can appoint an LPA that covers personal financial matters and one that specifically relates to your business affairs only. Putting a business LPA in place is a way of ensuring your business can continue to run if you are incapacitated or unable to make decisions. Without one, an application to the Court of Protection may be needed before the business could move forward. The time and expense involved could impede the normal running of the company. There is also the possibility in this instance that the Court would not appoint an individual who the business owner themselves would have chosen to take over.
Contact our team
Those creating an LPA without taking specialist legal advice face 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. Therefore, professional legal guidance and advice is highly recommended when you feel it is time to put the power of attorney in place.
If you wish to seek a legal professional to discuss your Lasting Powers of Attorney, or estate planning in general, please do not hesitate to contact us.
