A Lasting Power of Attorney (“LPA”) is one of the most important legal documents an individual can put in place. It allows trusted individuals to make decisions on their behalf if they lose mental capacity. Despite this, many clients are increasingly turning to online “DIY” LPA services without taking legal advice.

While these platforms may appear convenient and cost-effective, in practice they can give rise to significant – and sometimes devastating – consequences.

The False Economy of DIY LPAs

At first glance, completing an LPA online seems straightforward. Government forms are publicly available, and there is a growing market of low-cost providers offering “quick and easy” solutions.

However, LPAs are not simply administrative documents. They involve:

  • Complex legal concepts
  • Important strategic decisions about attorneys and powers
  • Safeguards against abuse or misuse

Errors are often not discovered until the LPA is needed – at which point it is usually too late to correct them.

Common Pitfalls

  1. Basic Errors with Serious Consequences

Something as simple as a spelling mistake can render an LPA unusable in practice.

  1. Invalid Execution and Registration Delays

LPAs must be signed in a strict order and correctly witnessed. Common DIY errors include:

  • Signing in the wrong sequence (e.g. attorneys signing before the certificate provider)
  • Incorrect or inappropriate witnesses
  • Relatives acting as certificate providers where this is not permitted
  • Attorneys witnessing parts of the document they should not
  1. Poorly Considered Attorney Appointments

DIY LPAs often swing between two extremes:

  • Too narrow: for example, appointing a spouse as sole attorney with no replacements; or
  • Too broad: appointing multiple individuals, creating practical difficulties

A particular area of misunderstanding is joint vs joint and several appointments.

  1. Failure to Future-Proof

A common issue is a lack of forward planning:

  • No replacement attorneys
  • No contingency for death, incapacity, or unwillingness to act

Equally, insufficient thought is often given to how replacement attorneys should act, leading to arrangements that do not reflect the donor’s intentions or that are unworkable in practice.

  1. Overly Complex or Unworkable Structures

Homemade LPAs frequently either:

  • Focus only on immediate circumstances without future-proofing; or
  • Include too many decision-makers, resulting in inefficiency and conflict

In practice, this can lead to deadlock, delay, and difficulty in managing even routine matters.

  1. Lack of Health & Welfare LPAs

A significant issue is the failure to prepare a Health & Welfare LPA, often due to a misunderstanding of the distinction between this and a Property & Financial Affairs LPA.

The absence of a Health & Welfare LPA can create real practical difficulties:

  • Difficulty obtaining or accessing care records
  • Uncertainty as to whether attorneys can be provided with information
  • Challenges in requesting or attending Continuing Healthcare (CHC) assessments or other health-based assessments

In practice, arguments can sometimes be made (for example, where attorneys are funding care) to justify involvement. However, in contested situations involving local authorities, the NHS, or family members, the lack of formal authority can become a significant obstacle.

  1. Capacity and Undue Influence Concerns

Without professional oversight, there is a risk that:

  • The donor may not have had the requisite mental capacity at the time of execution; or
  • An attorney or family member may have completed the LPA on the donor’s behalf

These issues may only come to light later, often in contentious or investigatory contexts.

  1. Disputes, Investigations and Exclusion of Family Members

WBW Solicitors are frequently involved in matters where:

  • Attorneys’ actions are challenged or investigated
  • Concerns are raised by family members who were not included in the LPA
  • Allegations of fraud, coercion, or undue influence arise

These risks are significantly reduced where the donor has taken independent legal advice at the outset.

  1. Delays Caused by Unregistered or Defective LPAs

Where families have prepared LPAs themselves, we are often in the position of having to wait for registration before we can act.

Delays commonly arise due to:

  • Errors in the document leading to OPG queries
  • Defective execution
  • The need to start again with entirely new LPAs

Additionally:

  • Poorly drafted or absent preferences and instructions can lead to uncertainty and disputes
  • Concerns regarding the donor’s capacity can further complicate matters
  1. Confusion with General Powers of Attorney

Another recurring issue is the use of a General Power of Attorney (GPA) in place of an LPA, due to a misunderstanding of the difference between the two.

A GPA:

  • Is only valid while the donor has capacity
  • Does not provide long-term protection

Where capacity is lost, a Deputyship Order is required, leading to delay, additional cost, and frustration for families.

  1. Attorneys Not Understanding Their Duties

DIY LPAs often result in attorneys being appointed without fully understanding their legal obligations, including:

  • Acting in the donor’s best interests (not their own)
  • Managing conflicts of interest (e.g. purchasing a property from the donor)
  • The need for court approval in certain transactions
  • Proper application of gifting rules (and confusion between IHT planning and deprivation of assets)
  • Considering least restrictive options for the donor
  • Record-keeping and retention of receipts
  • Understanding when Health & Welfare LPAs can be used
  • Rules around remuneration

Misunderstandings in these areas can lead to serious legal consequences, including investigations and personal liability.

The Real Cost of Getting It Wrong

When an LPA fails, the alternative is usually a Court of Protection deputyship application, which involves:

  • Ongoing court supervision
  • Annual reporting requirements
  • Increased costs and delays
  • Reduced flexibility compared to an LPA

In many cases, families ultimately incur far greater expense than if proper advice had been taken at the outset.

The Value of Professional Advice

WBW Solicitors can:

  • Ensure the LPA is valid and correctly executed
  • Advise on appropriate attorney structures
  • Future-proof the document
  • Address Health & Welfare considerations
  • Identify risks of undue influence or capacity issues
  • Draft clear, workable instructions and preferences
  • Ensure attorneys understand their duties
  • Integrate the LPA with wider estate planning

Conclusion

DIY LPAs may appear convenient, but they frequently represent a false economy. From minor administrative errors to serious safeguarding concerns, the risks are significant.

An LPA is not just a form – it is a critical legal safeguard. Taking professional advice ensures that it will operate as intended when it is needed most.

For further information or to book an appointment, please do get in touch.

WBW Solicitors has offices in Axminster, Bovey Tracey, Brixham, Exeter, Exmouth, Honiton, Launceston, Newton Abbot, Paignton, Seaton, Sidmouth, and Torquay.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.