Creating a Lasting Power of Attorney (LPA) involves choosing and appointing someone to be your attorney to make decisions on your behalf if you lose the mental capacity to do so yourself.  It is a powerful legal tool that can have long-term implications for you.  

Involving a solicitor ensures that your interests are well protected, and that both you and your attorney fully understand the legal and moral obligations, duties, and responsibilities that come with the role. 

While it is possible (and cheaper in the short term) to make an LPA without legal assistance, there are several important reasons why involving a solicitor, and paying for proper legal advice to do that, can be crucial:

Expert Guidance

A solicitor experienced in the Mental Capacity Act 2005 can provide expert guidance on the different types of LPA — one for health and welfare and another for property and financial affairs. They can help you understand the scope of authority that each type of LPA confers, ensuring that the LPA accurately reflects your intentions and needs. 

Tailoring to Specific Needs

Solicitors can tailor the LPA to your specific circumstances. This includes including specific conditions or restrictions on the powers granted to your attorney. A solicitor can help draft these provisions clearly and effectively, avoiding potential ambiguities that could lead to complications later on, when you are not able to clarify your intentions.  They can explain to you the implications of including restrictions, and why your choice of attorney may lead to considering the use of restrictions for a potentially better outcome, in an uncertain future.

Avoiding Errors

A solicitor can ensure that the process meets all legal requirements and reduces the likelihood of errors.

The process of drafting and completing an LPA involves detailed administrative tasks, including correctly filling out forms and meeting witnessing requirements.  These are surprisingly easy to get wrong and mistakes in these areas can invalidate the document or cause delays.

Addressing Complex Family Situations

In cases where family dynamics are complex, a solicitor can help navigate the potential challenges and legal complexities. This is particularly important to minimise disputes among family members or between family members and attorneys later on.  Experienced solicitors working in this area are fully aware of the toxicity of some family dynamics which may lead to expensive and protracted disputes involving your personal and financial affairs. 

Solicitors can provide an honest and candid appraisal of the risk of conflicts and how best to minimise them, whilst still ensuring that decisions are made by the right person, considering the right information, and making the decision you would make if you were able to make that decision yourself.

Ensuring Validity

Every LPA created includes the legal requirement for someone, known as the ‘certificate provider’ to assess your ability to understand the document, and to make it free from any outside pressure or influence.  This is crucial for the LPA to be effective and for decisions made under it to be respected by third parties, such as banks and healthcare providers.

Having a robust and evidence-based approach to this requirement can help avoid challenges about the validity of the LPA.  Challenges based capacity to create the LPA, or undue influence, can arise even after registration and at a time your attorney needs to make an important and consequential decision for you. 

Solicitors can act as your certificate provider, or engage a suitable independent professional for that purpose, to ensure that the appropriate evidence to support this is collated at the time your LPA is made. 

Future Proofing

A solicitor can help anticipate future changes in circumstances and how they might affect the operation of the LPA. They can advise on provisions you may wish to include in your LPA to adapt to such changes, helping to ensure that the document remains effective over time.

Peace of Mind

Having a solicitor prepare your LPA can give you peace of mind, knowing that the document is legally sound and that your wishes are clearly articulated and protected. Whilst you can never prevent someone from making a challenge on entirely spurious grounds, you can make sure that the likelihood of such a claim being successful is as minimal as possible.  This can relieve a significant emotional burden, especially in times of uncertainty about future health and capabilities.

Legal Advice

A solicitor can provide crucial legal advice on the implications of the LPA for tax, estate planning, and the interaction with other legal documents like wills. This holistic approach ensures that all aspects of your personal affairs are coordinated effectively.

In summary, while you do not have to use a solicitor to create an LPA, their involvement can provide assurance that the LPA is properly set up to effectively manage your affairs according to your wishes, particularly under complex or sensitive circumstances.  Choose a solicitor who is an expert in the Mental Capacity Act 2005 and has experience in dealing with challenges to LPAs.  There is a significant advantage in working with a lawyer who fully understands the implications of a poorly, or incorrectly drafted LPA.  The choice of who should be your attorney combined with an understanding and appreciation of how they will undertake their duties and responsibilities for you is one of the most important decisions you might need to make.   The value of getting it right is priceless.

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