Lasting Powers of Attorney and Court of Protection Deputyships can both be undertaken online, so why use a lawyer?
We can all understand the temptation to cut corners and save some money where possible but is it really worth taking the risk with matters as important and complex as these? You wouldn’t diagnose your own medical conditions, or in fact treat them, without specialist advice. Why should the case be any different for your legal affairs, particularly when this involves your future finances and welfare?
The Disadvantages of not using a lawyer – Lasting Powers of Attorney
Take for instance Lasting Powers of Attorney. These documents are designed to protect your wealth and welfare in the event of incapacity and to ensure your affairs are well-managed and looked after. They are also intended to make life easier for your loved ones if you should lose mental capacity in the future. Taking matters into your own hands could lead to costly mistakes and could ultimately leave things to chance.
The government has been leading a huge drive for online digitalisation and it is now possible to make your Powers of Attorney online. There is a lot of guidance available but it is large in volume and can be difficult to get to grips with if you are seeing the forms for the first time. The Office of the Public Guardian (OPG) have even had to create a specialist helpline to answer queries arising from online applications.
Even for those who are computer literate and quite comfortable following the online process, you may not consider all the consequences of the decisions you make for the documents. For example, it may seem like a good idea to appoint your Attorneys jointly, so that they all act together. However, you may not appreciate that this restricts your Attorneys to making all decisions only when together. If anyone is on holiday or otherwise temporarily or permanently unavailable, this will put a hold on decision making or could prevent the document from being used altogether. With the best will in the world, you could end up with document which simply is not fit for purpose.
A study by Solicitors for the Elderly (SFE) on online digital LPAs found feedback was that the experience was quite overwhelming and stressful. All participants in the study considered afterwards that using a Solicitor was the best option and this would create peace of mind. Some of them would have made different decisions had they have received legal advice before making the LPAs.
The Disadvantages of not using a lawyer – Court of Protection Deputyships
Like Lasting Powers of Attorney, the Court process to become a Deputy for someone who has already lost capacity can be overwhelming. The Court process itself is far more lengthy and cumbersome and there are strict Court deadlines to comply with.
A lack of understanding and experience of these cases may also result in a simple misunderstanding of what is involved or how to complete the forms. For example, many people would consider that their application for Deputyship is an “urgent” application however, the Court will only consider certain specific or exceptional circumstances to warrant an urgent application. It is not enough that the person you are applying for needs someone to access funds to pay for care: sadly this will apply to the majority of applications and does not apply an urgent status to the case.
Similarly, many people consider that they ought to make a Health and Welfare application for deputyship. Experts will tell you however that general personal welfare orders are very seldom granted and you must have very strong evidence and exceptional circumstances to warrant such an application.
There are many different applications in the Court of Protection and it is important that you have a good knowledge of the system before embarking on an application. There are also complicated matters to consider in some otherwise straightforward Deputyship applications, which most people will not be aware of. For example, some applications will require additional forms and separate applications to be made where the person’s assets include a property which is co-owned.
If disputed, Court of Protection applications can become very complex and protracted and it is important that you have representation to assist you. Having a lawyer involved from the start is beneficial to at least prepare for or anticipate any potential challenges to your application.
In addition to the issues above, the OPG and the Court of Protection can be very particular about the completion of the forms and the information required. Without proper experience, documents may be completed in a way which causes unnecessary delay or which does not have the desired end result.
Advantages of using a lawyer
Peace of mind cannot be understated when dealing with highly emotional transactions such as those set out above. Having a lawyer involved will relieve the burden of paperwork and the stress and time involved with trying to figure out the processes.
The costs of making these documents with a Solicitor are usually not that high, particularly when you consider what is at stake. Many lawyers charge fixed fees and so you can be sure of exactly what the process costs from the outset. Solicitors will also be regulated and insured so you have an added level of protection if anything was to go wrong.
Above all else it is beneficial to have your documents drawn up by a lawyer because they are regulated, experienced and can advise and support you. They will also act as certificate provider for your LPAs and will keep comprehensive notes on file which can be useful in cases where the validity of the LPAs is called into question in future.
You also have the benefit of a lawyer to provide ongoing advice and support going forward; some may be able to advise and support your Deputies and Attorneys with their role and responsibilities. Being a Deputy or Attorney does not mean you can do whatever you like and it is important that you are aware of your role at the earliest opportunity so that documents can be used lawfully.
A lawyer can also assist with the preparation of the annual deputy report and any additional Court applications which may be required in the future. As mentioned above, there are still checks and limits to the decisions which Attorneys and Deputies can make without Court authority. A lawyer can review the Deputy Order to ensure this is sufficient and advise on what authority is granted.
In summary, it is fair to say “you don’t know what you don’t know” and so in the absence of legal advice, you cannot always say for sure that the decisions you make when completing these processes will give you the desired result or authority. This could lead to complications further down the line which may cost more time and money in Solicitors fees to put right.
Article written by Tonina Ashby of Tollers LLP
Tonia Ashby is Head of Elderly and Vulnerable Client Unit at Brain Injury Group member firm Tollers LLP.
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