DIY Lasting Powers of Attorney: what can go wrong?

DIY Lasting Powers of Attorney: what can go wrong?

What happens if you make a Lasting Power of Attorney (LPA), believing everything has been done correctly, only to discover later that it is not valid?

For many people, making an LPA can appear to be a relatively straightforward process. There are forms to complete, attorneys to choose, signatures to obtain and a certificate provider to involve. But LPAs are precise legal documents, and getting those details right matters.

Three recent cases considered just that. They were test cases, with a further 24 matters on hold pending the outcome of the proceedings. At the heart of the cases were questions about the certificate provider: was this person competent to act, had they actually satisfied themselves of the things they were required to consider, and had the LPAs been executed correctly?

The cases serve as a useful reminder for anyone making an LPA, whether with professional advice or perhaps thinking of ‘DIY-ing it’ on their own.

What does a certificate provider actually do?

A Lasting Power of Attorney is not created unless it meets specific legal requirements, and the certificate provider has an important role in that process. They must confirm that the person making the LPA, known as the donor, understands the purpose of the document and the authority they are giving to their attorneys. They must also be satisfied that there is no fraud or undue pressure being used to persuade the donor to make the LPA.

In other words, the certificate is more than simply another signature on the form.

The donor chooses their certificate provider and the certificate provider must reasonably consider themselves competent to make those judgements. Importantly, there is no expectation that the donor should investigate or verify the skills or expertise that a potential certificate provider says they have. The donor is entitled to rely upon that person’s own assessment that they are suitable.

Who can be a certificate provider?

The regulations give examples of people whose professional skills and expertise may make it reasonable for them to consider themselves competent to act. These include registered healthcare professionals, barristers, solicitors, registered social workers and independent mental capacity advocates.

There are also people who cannot act as a certificate provider. These include the donor themselves, an attorney under the LPA and certain people connected with an attorney. There are also restrictions involving people connected to a care home where the donor lives.

Those disqualified relationships are very much the bottom line: these people are simply not appropriate to act as certificate provider.

What happened in these cases?

The Public Guardian raised serious concerns about the particular certificate provider involved. His background included a conviction and disqualification as a company director. The Public Guardian’s position was that this demonstrated extremely poor judgement and a disregard for the law, meaning he could not reasonably have believed himself competent to act as a certificate provider.

There was another important issue too. There were no contemporaneous records showing what the certificate provider had done to satisfy himself that the necessary requirements had been met. The judge considered that lack of evidence when looking at whether he could reasonably have considered himself competent to make the judgements required of a certificate provider.

But competence was only part of the problem. The question was also whether, in each of the three cases, the certificate provider had actually satisfied himself that the donor understood the LPA and was not being subjected to fraud or undue pressure. Failing to do so can be enough to invalidate the instrument.

Even the order of signing matters

Evidence was also heard that the documents had not been executed in the correct order, despite the dating of the documents potentially suggesting otherwise. It might sound like a technicality, but LPAs are precise documents. The choices made when completing them, and the requirements around signing, witnessing and dating, can all have a material impact and may ultimately result in an LPA not being registered.

And that is where a technical mistake can become a very practical problem. If the donor still has mental capacity when the problem is discovered, there may be the possibility of having another go and making a new LPA. If the donor has already lost mental capacity, however, they cannot simply go back and make a replacement LPA and the options become far more limited.

More than just form filling

It is easy to look at an LPA as a collection of forms that need to be completed and signed. These cases demonstrate why it is more than that.

The role of the certificate provider, the decisions being made, the order in which things happen and even the witnessing and dating of the document can determine whether the LPA ultimately works as intended.

This is why making an LPA is more than just form filling. The value of professional advice is not simply in completing the paperwork, but in helping to ensure that the document has been properly prepared and executed and will do the job it is intended to do when it is needed.