Digital Lasting Powers of Attorney: Why Professional Legal Advice Still Matters
The way we create Lasting Powers of Attorney (LPAs) is set to change, with the Government working towards introducing a fully digital process. The reforms aim to make creating and registering LPAs quicker, more accessible and more secure.
While these changes are welcome, they may also encourage more people to prepare LPAs themselves, without seeking professional legal advice.
However, an LPA is much more than a form to complete. It is an important legal document that can have a significant impact on your future and the decisions made on your behalf. Digitalisation may change how an LPA is created, but it does not change the importance of the decisions behind it.
So, even as the process becomes more straightforward, why should you still consider using a solicitor?
What is a Lasting Power of Attorney?
An LPA is a legal document that allows you to appoint one or more trusted individuals, known as attorneys, to make decisions on your behalf.
There are two types of LPA:
- Property and Financial Affairs LPA: Allows your attorneys to manage matters such as bank accounts, paying bills, investments and property.
- Health and Welfare LPA: Allows your attorneys to make decisions about your care, medical treatment and living arrangements if you lose the mental capacity to make those decisions yourself.
Having LPAs in place can provide peace of mind that, should you become unable to make certain decisions, someone you trust will be able to act in your best interests.
What is changing with digital LPAs?
The Powers of Attorney Act 2023 provides the framework for modernising the existing LPA system in England and Wales.
The proposed reforms will introduce a digital route for creating and registering LPAs, alongside improvements to the existing paper-based process. The aim is to reduce administrative delays, improve accessibility and strengthen safeguards against fraud and abuse.
Although it is already possible to complete LPA forms online, these currently need to be printed and signed. The proposed reforms will take the process further by allowing LPAs to be created and submitted digitally.
While this should make the administrative process easier, the legal responsibilities and important decisions involved in creating an LPA will remain.
Why is professional legal advice still valuable?
Ensuring your LPAs reflect your wishes
All individual’s circumstances are different, and an LPA should reflect your personal wishes, family relationships and financial situation.
A solicitor can take the time to understand your circumstances and explain the options available to you, ensuring that your LPAs are tailored to your needs rather than simply completing a standard form.
For example, you may wish to include specific instructions about how your attorneys should manage certain assets or express preferences about your future care.
Professional advice can help ensure that these provisions are appropriate, clearly worded and legally effective.
Choosing the right attorneys
Appointing an attorney is one of the most important decisions you will make when preparing an LPA.
Your attorneys could potentially have considerable responsibility for your finances, property or personal welfare. It is therefore essential to choose individuals who are trustworthy, capable and willing to act in your best interests.
If you appoint more than one attorney, you must also decide whether they should act jointly, jointly and severally, or in a combination of these ways.
These arrangements can have practical consequences. For example, requiring attorneys to make every decision together could create difficulties if one becomes unable or willing to act.
A solicitor can explain the implications of each option and help you choose arrangements that are appropriate for your circumstances.
Avoiding mistakes and potential complications
Although DIY LPAs may appear straightforward, mistakes or unclear instructions can cause problems.
Errors in completing or signing the documents may result in an application being delayed or rejected by the Office of the Public Guardian.
More importantly, poorly drafted instructions may create uncertainty about what your attorneys can and cannot do.
In some circumstances, problems may only become apparent when the LPA is needed, potentially at a time when you no longer have the mental capacity to make changes.
Having a solicitor prepare your LPAs can help reduce these risks and ensure that the documents are properly drafted and executed.
Protecting against undue influence and abuse
LPAs give attorneys significant powers, particularly when dealing with financial affairs. It is therefore important that they are created freely and with a full understanding of their implications.
A solicitor can discuss your wishes with you; explain the authority you are granting and identify potential concerns surrounding pressure or undue influence.
This independent professional involvement can provide an additional layer or reassurance, particularly where family relationships or financial arrangements are complicated.
Considering your wider circumstances
Preparing an LPA should not necessarily be viewed as an isolated task.
Your arrangements may need to take account of other aspects of your personal and financial affairs, including your Will, property ownership, business interests and estate planning.
For example, if you own a business, you may need to consider whether your chosen attorneys have the necessary skills and authority to manage your business affairs.
A solicitor can help identify these issues and ensure that your LPAs form part of a wider, considered approach to planning for the future.
Is a DIY Lasting Power of Attorney a good idea?
It is entirely possible to prepare an LPA without instructing a solicitor, and for some people with straightforward circumstances, this may be a suitable option.
However, the apparent savings should be weighed against the potential consequences of getting something wrong.
An LPA is designed to provide protection when you may be at your most vulnerable. If difficulties arise after you have lost mental capacity, it may no longer be possible to correct the document, potentially leaving your family facing additional legal complications and expense.
Seeking professional advice at the outset can help avoid these difficulties and provide reassurance that your wishes have been properly considered.
Planning ahead with confidence
The introduction of digital LPAs represents a positive step towards making future planning more accessible.
However, while the process of creating an LPA may become simpler, the decisions involved remain just as significant. Choosing who should act on your behalf, deciding what powers they should have and ensuring your wishes are clearly documented all require careful consideration.
Technology can simplify the preparation and registration of legal documents, but it cannot replace the value of personalised advice and an understanding of your individual circumstances.
By seeking professional legal advice, you can have confidence that your LPAs are not only correctly prepared but also provide the protection and flexibility you and your loved ones may need in the future.
At Barker Gotelee, our experienced Private Client Team can guide you through the process of preparing and registering Lasting Powers of Attorney, providing clear, practical advice tailored to your circumstances.
Katrina Drake is an Associate Solicitor in the Private Client Team at Barker Gotelee Solicitors.
Whether you are considering LPAs for the first time or reviewing your existing arrangements, Katrina and our Private Client Team can help.
To speak to a member of the team, please call 01473 611211, or complete our enquiry form below.
