What’s the difference between a Will and a Power of Attorney?
Will: a legal document which deals with the disposal of a person’s estate when they die.
Power of Attorney: a legal document which appoints an Attorney to act on behalf of someone else whilst they are still living, but unable to deal with matters themselves – ie., due to losing their mental capacity or because they need to delegate the responsibility due to physical incapacity or other reason.
Lasting Powers of Attorneys
The pressure of trying to get the whole process right is immense. Anyone who does this for the first time usually finds the process complicated and confusing if they don’t have the benefit of legal advice. The scope for a donor to be coerced is significant, as many donors will complete the forms only in consultation with their chosen attorneys, in whom they must place a great deal of trust. It is also generally older and vulnerable people who apply for LPAs, with the majority of new donors being between 81 and 90 years old. All LPAs must be submitted and registered with the Office of the Public Guardian (OPG) before they can be used.
With cases including such serious matters as donors’ homes being sold to attorneys and suspiciously large financial sums being transferred to private accounts, any increase in the number of safeguarding referrals and investigations is extremely concerning. The risks of outright fraud are traditionally low, but have risen as a result of more people attempting to create LPAs themselves.
The risk of failing to understand the implications of an LPA and the basis on which they should be drafted is too great to do without expert legal advice.
It’s simple isn’t it? What can go wrong?
- Lots!* Some errors might result in an inconvenience (eg., one of the attorneys or replacement attorneys is rejected or may not have all the powers they need to act in the donor’s best interest) and some errors or instructions might result in an invalid LPA without the ability to prepare a new one (ie. if the donor has already lost mental capacity).
- The biggest problem is that many people leave it too late.If the donor no longer has mental capacity, it’s not possible for them to make a Lasting Power of Attorney.
Why use APS Legal to prepare a LPA?
- Experienced Legal Specialist & member of IPW
- Visit at home
- Experts – You do it once in a lifetime. We do it every week.
- APS can act as the certificate provider and assess for mental capacity.
- We don’t just complete the forms for you.We give legal advice, explain the consequences and give you reasons and options for each stage and attend and check signings.
- Discuss options for attorneys – how many? How to act? Who?
- Should you add guidance and/or restrictions?
- Checking service – check for errors so the LPA is not rejected or restricted by the Office of the Public Guardian.
- Follow the process through from initial meeting, to drafting forms, visiting again for signing, acting as witness, signing as Certificate Provider, arranging signings by all Attorneys (wherever in the country/world they are), checking forms and send for registration, check again when received back from OPG and securely deliver to client (or Attorney).
- Provide help and details about how & when to use the LPAs.
*In the period August 2015 to August 2016, over 13,000 LPAs were rejected. Even if mistakes are not picked up the OPG, the LPA may later be rejected by banks, utility providers or medical professionals.