Do I need to use a Solicitor to create a Lasting Power of Attorney?

A Lasting Power of Attorney is a powerful legal document that gives very strong permissions over someone’s life and wellbeing, therefore it is advisable that you seek legal help and advice from a solicitor when wanting to make a Power of Attorney to ensure that there can be no risk of abuse of the power given.

By using a solicitor you are receiving reassurance that the whole process is being carried out legally, and a solicitor will be able to help if you are unsure about the process, the family does not get on or there are complex assets, such as businesses or overseas property.

What value do Barrett & Co add?

  1. Advising who you might appoint to be your attorneys and make sure those you intend to appoint are willing and able to act and that they understand the duties and responsibilities they will be assuming.
  2. Explaining the different ways attorneys can be authorised to make decisions, including on their own, or jointly with others.
  3. Helping you nominate replacement attorneys in case your original attorneys are unable to act.
  4. Drafting how your wishes ought to be expressed to ensure they cater for all eventualities and are capable of being carried out.
  5. Including any specific wording which may need to be included to enable investments to be managed on your behalf.
  6. Advising whether a separate Lasting Power of Attorney may be necessary to protect your business interests.
  7. Considering 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, or where there are trust interests.
  8. Advising how a Lasting Power of Attorney may be used where assets covered by the lasting power of attorney are owned jointly.
  9. Reviewing how to prevent your application for registration being rejected by the Office of the Public Guardian
  10. Preventing the validity of your Lasting Power of Attorney being challenged by arranging for a doctor to assess your mental capacity in the event of deteriorating mental health, if necessary.

Here are some examples of what could happen:

Scenario 1

Mr White 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 White’s doctor assesses him as having the mental capacity to do this but warns him that he needs to do it quickly.  Mrs White 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 White eight weeks to resubmit the application, by which time Mr White has lost mental capacity.  This means Mrs White 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 White’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 Black prepare their own Lasting Powers of Attorney.  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 Black will have to create new Powers of Attorney and pay further registration fees.

Scenario 3

Mrs Green 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 Green 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 Green specifically does not want.

We offer a fixed fee service which includes our tailored advice on drafting Lasting Powers of Attorney, acting as your Certificate Provider, liaising with your Attorneys and overseeing the registration of the Lasting Powers of Attorney with the Office of the Public Guardian. For further information please contact Vanessa Ruparel, a solicitor in Reading specialising in Lasting Powers of Attorney on 0118 958 9711 or by email on [email protected].

Further Reading:

Shall I put my home in my children’s names?

National Grief Awareness Week

Contentious Probate: How Much and Who Pays?

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Get in Touch

Vanessa Ruparel offers a fixed fee initial meeting of one hour to discuss your personal circumstances, your options and your next steps, at a cost of £95 (inc VAT).

Vanessa will meet you in our Reading Berkshire office, alternatively meetings can occur by telephone. If you would like to meet with Vanessa please telephone the office so that an appointment can be arranged.

Vanessa is a Solicitor specialising in Wills, Lasting Powers of Attorney and the administration of estates.

"barrettandco" and "Barrett & Co" are trading names of Barrett & Co Solicitors LLP, a Limited Liability Partnership incorporated in England and Wales under registration number OC356263, with registered office at Salisbury House, 54 Queens Road, Reading, Berkshire RG1 4AZ. Barrett & Co Solicitors LLP is authorised and regulated by the Solicitors Regulation Authority www.sra.org.uk (SRA Number 549694).

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