Top 10 reasons to use a lawyer to make your lasting power of attorney

Top 10 reasons to use a lawyer to make your lasting power of attorney

A lasting power of attorney lets you decide who you would like to make decisions for you if you lose mental capacity.  You can make a lasting power of attorney to cover decisions concerning your property and affairs and also to cover decisions about your health and welfare.

While you may be tempted to try and do it yourself, the process is complicated and if not followed correctly your lasting power of attorney may not be valid when you need to use it.

Rachael Waring gives her top ten reasons why you should always use a lawyer to make a lasting power of attorney.

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 it can be used.

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. 

Using a lawyer can help you avoid problems by:

  1. Advising 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.
  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 funds held by banks and building societies 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.
  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 the things you need to do 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.

Your lawyer 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. They can also ensure that you are advised of any other steps you should consider taking to protect your position, such as making a will or updating an existing will, applying for any benefits you may be entitled to, or making an advanced decision on medical treatment if you are certain you would not wish to receive life sustaining treatment if you became seriously unwell.

For a confidential discussion about lasting powers of attorney, or any wills, trusts and probate matter, please contact Rachael on 01524 32484 email rachael.waring@holdenslaw.com

The contents of this article are for the purposes of general awareness only.  They do not purport to constitute legal or professional advice.  The law may have changed since this article was published.   Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.


 

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Posted: 3rd July 2018

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