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How do I set up Lasting Powers of Attorney

Clients regularly come to me asking about Lasting Power of Attorney, the most important question they ask is “how do I go about setting it up?” The natural assumption is that they must use a solicitor or professional to set it up and whilst that is advisable, that isn't strictly the only way of doing it.

So really you've got two options. You can do it yourself or you can get a professional to do it for you.

So let's look at the two options:

Doing it yourself

You can ring the Office of Public Guardian on 0300 456 0300 and request the forms yourself or you can visit their website here and use their software to create the forms for you. If you search around their website, you will find that they have some pretty good guidance on how to go about the whole process.

When I'm advising people who are considering setting up LPAs by themselves, I always say there's a couple of things you've got to bear in mind when weighing it up.

Cost

By doing it yourself, you're saving on the cost of paying somebody like myself to do it which is obviously a bonus! If your application gets rejected however, you will need to resubmit the application with new forms, often having to start the whole thing again. Each time this happens you might need to resubmit a registration fee. In the long run you could find yourself paying a similar amount in registration fees that you would have paid a professional. You might get lucky and your mistake might be so minor they don't ask for any more registration fees, but don't be under the illusion that they won't.

Time

It's not something you're going to be doing in 10 minutes, so you need to put a lot of time aside for this. Do you have the time and patience to do it? If so, great! Get started and see how you get on, you can always contact me with any questions. Professionals can knock up these forms pretty quickly because we know what we're doing and we’ve done it hundreds and hundreds of times.

Getting it Right

If you're doing this for the first time however, there is new jargon to understand and lots of questions that you really need to think about before you answer them. Do you understand the relevance of each question that's being asked?

A great example is where you have more than one attorney being appointed and there is a question about how you want these attorneys to act. Do they act jointly, so that everything's done together in agreement or do they act jointly and severally, meaning if all attorneys are present, they can make that decision jointly, but actually if there's only one person there, they can still can make that decision alone?

Many people will just select jointly without thinking about it because they want all of their attorneys to make that decision in agreement with each other. This is fine, but the problem is they don't realise that this options causes big problems if one attorney can’t be present because they've now moved to Australia, they're away on holiday or maybe even they have passed away. In this instance no further decisions can be made because unless all named attorneys are present, no decision can ever be made again. It's not as if that one particular attorney gets struck off and the remaining two can carry on acting for you - it's literally all of them or nothing.

Now obviously that's just one example of one question on a Power of Attorney whereby you think you might have done it right, but you might not actually find out until years down the line that you've done it wrong. If by this point, the donor (the person who the power is on behalf of) has lost mental capacity, it would be too late to start making a new LPA.

For families in this situation they now face the prospect of applying to the Court of Protection for what is called deputyship. Trust me this is not a route you’d chose to go down, so whilst I'm not saying doing LPAs yourself is impossible - please, please bear in mind that this can go wrong and when it does the ramifications are no fun.

You'll find some information on the CoP process here (I will be doing a video on this and will insert link here)

Link to piece on the CoP and use a list of costs

So one option to do it yourself, the other option is to get this done by a legal professional. This means you don’t have to spend hours getting your head around the process and getting everyone to sign the documents correctly. Furthermore it takes away any worries that you might have done something wrong and that the LPA application will get rejected. In the unlikely event that something did go wrong, your legal professional is fully responsible for covering all further costs associated with the application. It is important therefore that you check they have professional indemnity insurance which will cover these costs in the event that the professional can’t pay

is there cover in the unlikely event that something did go wrong. any costs that are needed to be spent as a result of my error, I have to cover fully and if I didn't have the money, I've got the insurance to cover it.

So basically what it means is you know you've got to pay a sum of money to get this done. It's always a fixed fee with me, but at least you know it's a fixed fee and there's no more money that needs to be spent. So it's a weigh up between the two really. Do you want to spend the time doing it yourself and making sure absolutely certain that you've got everything right, but at least saving money on paying somebody else to do it or would you prefer to save on the hassle and pay somebody else to do it? The choice is entirely yours. Any questions about it, please come to me.