Lasting Power of Attoneys - What Happens When Things Go Wrong
What is Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is useful tool when people
become incapable of running their own financial affairs.
An LPA allows someone,(of the donor’s
choice) to step in and take control
of the donor’s finances.
Because of the great power the LPA gives them, attorneys are
often trusted friends or family of
People given formal powers under LPA to make decisions on
behalf of adults who lack capacity
are bound by law such as the Mental Capacity Act and its Code of
The attorney must always comply with the law and act in the person's
Adults who lack capacity and do not have such formal
arrangements and require significant
decisions to be made may be subject to a best interests meeting,
or the issue may need to be
taken to the Court of Protection.
The court may appoint a
deputy to act as decision maker or
make a declaration about what is in the person's best
interests and this can involve more legal costs.
What are the formalities?
There are two types of LPA: personal welfare and property
LPAs are legal documents and are only valid if completed on
the statutory form
LPAs must be signed by the donor
LPAs should normally name people who should be informed when
it is to be registered
LPAs must contain a certificate completed by an independent
LPAs must name the person (or persons) who is to act as
LPAs must be registered with Office of Public Guardian (OPG)
before they can be used.
The attorney must
follow any instructions the donor included in the LPA
consider any preferences the donor included in the LPA
help the donor make their own decisions as much as they can
make any decisions in the donor’s best interests
You can appoint more than one attorney who can act: ‘jointly’
- this means all the attorneys must agree or ‘jointly and severally’ - this
means you can make decisions together or on your own
Why Is It needed?
A LPA enables one to such things as deal with their own bank accounts or do any other financial transactions or to give instructions on what you would like to happen if you are ill.
The main problem is that If you lose mental capacity, unless
you've already filled in the Power of Attorney forms, your loved ones will need
to apply through court to become 'deputy',
You can only set up a Lasting Power of Attorney when you
have mental capacity.
Once you've lost capacity, it is too late.
If the donor has lost capacity but did not set up the LPA in advance, it gets
What are the pitfalls ?
There are strict requirements for the signing and witnessing
of LPAs and the case discussed below highlights the need for care which can lead to errors in completing the documents.
Mistakes can also be made in dates of birth being incorrect
or missing, names being spelt incorrectly, addresses being spelt incorrectly,
post codes being wrong, and the witness not being an appropriate person.
Although LPAs can be very useful, there are potential
problems arising from their operation. Many of these can be avoided with the
correct advice in preparing your LPAs.
When a donor is unwell, or losing their mental capacity,
family members who are not appointed
as attorneys might sometimes try to make complaints on the
This could be
because they believe that someone has misled the donor – by
mis-selling an investment, for
example. They might also object to the actions of the attorneys
Sometimes other relatives may not be happy with the way the attorney is behaving and will make a complaint on this basis..